STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
and )
) LINDA L. YOUNG, AMELIE BLYTH ) and DIANA GODWIN, )
)
Intervenors, )
)
vs. ) CASE NO. 90-7706GM
)
SANTA ROSA COUNTY, )
)
Respondent. )
) LINDA L. YOUNG, AMELIE BLYTH, ) and DIANA GODWIN, )
)
Petitioners, )
)
vs. ) CASE NO. 93-4980GM
)
SANTA ROSA COUNTY and ) DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matters were heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 22-24, 1994, in Milton, Florida.
APPEARANCES
For Petitioner: Stephanie M. Callahan, Esquire (DCA) 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Petitioners: David A. Theriaque, Esquire (Young, Blythe and Building F, Suite 100
Godwin) 820 East Park Avenue Tallahassee, Florida 32301
For Respondent: Kenneth G. Oertel, Esquire (County) M. Scott Shirley, Esquire
Post Office Box 6507 Tallahassee, Florida 32314-6507
STATEMENT OF THE ISSUE
The issue in these cases is whether the Santa Rosa County comprehensive plan, as adopted on September 27, 1990, and the remedial amendments adopted on April 22, 1993, are in compliance.
PRELIMINARY STATEMENT
Case No. 90-7706GM began on December 5, 1990, when petitioner, Department of Community Affairs (DCA), filed a petition alleging that the comprehensive plan adopted by respondent, Santa Rosa County (County), was not in compliance. The petition raised a variety of issues. Thereafter, intervenors, Linda L. Young, Amelie Blythe, and Diana Godwin, filed petitions to intervene in Case No. 90-7706GM on January 16, February 1 and August 7, 1991, respectively, alleging that the plan was inconsistent in various respects with certain provisions within Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. These petitions were later granted. In addition, petitions to intervene were filed on behalf of Francis Dunham and Robert Carl and were subsequently granted. Dunham's petition was later withdrawn and Carl did not appear at final hearing. Accordingly, his petition is deemed to have been abandoned. On June 24, 1992, the County and the DCA entered into a stipulated settlement agreement which required certain remedial amendments to the plan. On April 22, 1993, the County adopted those remedial amendments. After the amendments were submitted to the DCA for review, on June 22, 1993, the DCA published its cumulative notice of intent determining that the original plan, and the remedial plan amendments, were in compliance. On July 15, 1993, Linda L. Young, Amelie Blythe, and Diana Godwin filed a petition for formal administrative hearing challenging the plan, as amended, in various respects. That petition was assigned Case No. 93-4980GM, and the two cases were consolidated for hearing purposes. By order dated October 15, 1993, the previously-assigned Hearing Officer in these cases determined that the issues in both cases were those stated in the petition filed in Case No. 93-4980GM, and this ruling was observed at final hearing. In that petition, petitioners raised thirteen issues.
Case No. 90-7706GM was originally noticed for hearing on January 7-10, 1992, in Milton, Florida. That hearing was cancelled after a stipulated settlement was reached, and both cases were later noticed for hearing on December 6-10, 1993, in Milton, Florida. At the request of petitioners, the matters were continued to January 18-21, 1994, and then again to February 22-25, 1994, at the same location. At final hearing, petitioners presented the testimony of Dr. Richard A. Hilsenbeck, a senior research botanist for the Florida Natural Areas Inventory and accepted as an expert in conservation biology and management of Florida plants and ecosystems; Dr. Sneed B. Collard, a professor at the University of West Florida and accepted as an expert in marine environmental sciences, seagrass community ecology and benthic invertebrate communities; Dr. George W. Folkerts, a professor at Auburn University and accepted as an expert in endangered and threatened carnivorous plants, zoology, botany, and aquatic wetlands; Dennis M. Mitchell, an environmental consultant and accepted as an expert in wetlands and uplands ecology and threatened and endangered species; Dr. Gregory W. Stone, a professor at Louisiana State University and accepted as an expert in geomorphology; Neil G. Sipe, an environmental consultant and accepted as an expert in urban and regional planning; and Yvonna Miller, a realtor. Also, they offered petitioners' exhibits 2, 4-7, 9, 10, 12, 14, 15, 17-19, 21, 22, and 28A-E. All exhibits were received in evidence. The County presented the testimony of Jack E. Dorman, accepted as an expert in urban and regional planning; and Dr. Joseph A. Edmisten, an environmental consultant and accepted as an expert in general
ecology and natural systems. Also, it offered respondent's exhibits 1A and B. Both exhibits were received in evidence. Finally, the parties stipulated joint exhibits 1-24 into evidence.
The transcript of hearing (three volumes) was filed on April 6, 1994.
Proposed findings of fact and conclusions of law were originally due on May 6, 1994. At the request of the parties, this time was extended to June 17, 1994, and proposed orders were timely filed by the parties. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order. Motions to strike all or parts of the opposing party's proposed order have been filed by petitioners and the County. In addition, a motion to assess attorney's fees and costs was filed by the County on June 23, 1994. All pending motions are dealt with in the conclusions of law portion of this Recommended Order.
Based upon all of the evidence, the following findings of fact have been determined:
FINDINGS OF FACT
Background
The parties
Respondent, Santa Rosa County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by the Department of Community Affairs (DCA), petitioner in Case No. 90-7706GM and co-respondent in Case No. 93-4980GM.
Petitioners/intervenors, Linda L. Young, Amelie Blyth, and Diana Godwin (petitioners), are all residents of the County. Young resides in Gulf Breeze while Blyth and Godwin are residents of Navarre, Florida.
The nature of the dispute
On September 27, 1990, the County adopted its comprehensive plan (plan). After objections to certain portions of the plan were lodged by the DCA, a non-compliance proceeding under Subsection 163.3184(10), Florida Statutes, was initiated in Case No. 90-7706GM. Petitioners were then granted leave to intervene in that proceeding. On April 22, 1993, the County adopted remedial amendments to the plan. These amendments satisfied the DCA's objections, and a cumulative notice of intent to find the plan and plan amendments in compliance was subsequently issued. Accordingly, the interests of the DCA and County are now aligned.
In response to the cumulative notice of intent, petitioners initiated Case No. 93-4980GM through the filing of a petition for hearing challenging the plan, as amended, in various respects. That pleading frames the issues in both cases. This is confirmed by a ruling of the hearing officer entered on October 15, 1993, and by acknowledgement of petitioners' counsel at hearing that petitioners agreed to "stand by" those allegations. According to the parties' prehearing stipulation, petitioners contend the plan, as amended, is deficient in thirteen respects. These issues pertain to the protection of wetlands, unique vegetative communities and endangered species (issues 1, 2c, 9, 11 and 12), the protection of water quality and habitat in estuaries (issue 2a), the protection and restoration of beaches and dunes (issue 2a), public expenditures in the coastal high hazard area (issue 7), the Santa Rosa Bay Bridge (issues 8
and 10), public access to beaches at Navarre Beach (issues 2b and 3), Navarre Beach (issues 5 and 6), and the plan's consistency with one part of the state comprehensive plan (issue 13). As to this latter issue, no proof was submitted at hearing and it has been deemed to have been abandoned. Finally, the internal and external consistency of the plan's conservation and coastal management element is challenged in issue 4.
An Overview of the County
The County is located in the northwest Florida panhandle. The county seat is Milton, which is located approximately in the center of the County. The County is bounded to the north by the State of Alabama, to the east by Okaloosa County, to the south by the Gulf of Mexico and Escambia County, and to the west by Escambia County.
Most of the County which lies north and west of Milton is rural. The southern and southwestern half of the County is more densely populated and is either urban or transitional. Urban areas in the southwestern part of the County include the Gulf Breeze peninsula, Milton and the area west of Milton near the county line.
Significant water resources in the County revolve to a significant degree around the Pensacola Bay system, including Black Water Bay, East Bay, Escambia Bay, and Pensacola Bay. Santa Rosa Sound is located between the Gulf Breeze Peninsula and Santa Rosa Island in the southern part of the County.
Lands held for conservation uses include the Black Water River State Park, Black Water River State Forest/Fish and Wildlife Management Area, Yellow River Marsh Aquatic Preserve, Naval Live Oaks Reservation, Eglin Air Force Base Wildlife Management Area, and lands owned by the Northwest Florida Water Management District (NWFWMD) in the floodplain of the Escambia River. The Blackwater River State Forest and Eglin Air Force Base Wildlife Management Area occupy the majority of the eastern half of the County. Also, there are several priority acquisition projects under the Save Our Rivers/Florida Preservation 2000 Program, which include Big Jumper Creek, approximately 1,600 acres; the Yellow/Shoal River Basin, approximately 20,000 acres in Santa Rosa and Okaloosa Counties; Yellow River Ravines, approximately 12,470 acres; the Black Water River Project, approximately 17,200 acres; and the Garcon Point Project of which approximately 1,864 acres have been purchased. In addition, a Conservation and Recreation Land (CARL) Fund application has been submitted for the Prairies of Garcon Project, which encompasses approximately 4,630 acres, and an additional 820 acres of the Garcon Point Project remain for purchase.
Navarre Beach consists of a four-mile section of Santa Rosa Island, a barrier island bounded on the north and east by Eglin Air Force Base, on the south by the Gulf of Mexico, and on the west by Gulf Islands National Seashore. Navarre Beach represents only about 2 percent of the total County population. Although Navarre Beach is within the governmental jurisdiction of the County, it is owned by Escambia County. The County leased Navarre Beach from Escambia County in 1956. In turn, the County leases parcels on Navarre Beach for private use.
Plan Data and Analysis
The Garcon Peninsula
The Garcon Peninsula is located in the southwestern portion of the County, south of Milton, and between Escambia Bay to the west, and East Bay to the east, approximately ten miles east northeast of the City of Pensacola. It is surrounded by water on the west, east and south, and is bounded by Interstate
10 to the north. Much of Blackwater Bay and a portion of East Bay to the east of Garcon Peninsula is included in the Yellow River Marsh Aquatic Preserve.
The Peninsula is comprised of several different vegetative land cover types, including wet prairie, wet and mesic flatwoods, cypress dome swamps, baygall domes, estuarine tidal marsh, and upland mixed forest.
Fee simple acquisition by the State is the best method of preserving the natural resources of an area such as Garcon Peninsula. A significant amount of land has already been purchased for conservation on the Peninsula, and the acquisition of ever larger parcels is ongoing. For example, in 1992, approximately 1,864 acres were purchased by the NWFWMD while a second tract of 4,640 acres has been submitted for approval under the CARL program in 1994.
As long as the southern publicly-owned lands in Garcon Point Project are managed properly with controlled burns, development of privately-owned lands to the north would not be injurious to the ecology of the southern area.
Indeed, only a week before final hearing, a controlled burn was conducted on the publicly-owned southern part of the Peninsula.
More than 95 percent of Garcon Peninsula is jurisdictional wetland for the U. S. Army Corps of Engineers, and a dredge and fill permit is currently required before development can occur. At the same time, the jurisdiction of the Department of Environmental Protection (DEP) is increasing such that DEP will soon have extensive jurisdiction over this area.
Little development will occur on the Garcon Peninsula regardless of the Santa Rosa Bridge proposal or the provisions of the plan. In developing the plan, the County recognized the difficulty that state and federal wetland protection programs pose for developing wetlands. Even if such projects were approved, mitigation is uniformly required in the form of "creation" at a ratio of two to one, "enhancement" at a ratio of ten to one, and "preservation" at a ratio of seventy to one.
Dune Preservation and Restoration
The plan foundation documents present a thorough analysis of beach and dune conditions, as well as an assessment of storm damage risk. The information presented was from a 1984 University of West Florida Beach Management Study.
The County has 7.25 miles of barrier island beach fronting the Gulf of Mexico to the south, of which 3.05 miles are within Eglin Air Force Base. Santa Rosa Island consists of a single well defined primary dune backed by a lower swale and larger secondary dunes. The primary dune is relatively continuous with only minor breaches.
The dunes of Santa Rosa Island average about fourteen feet above sea level. The island has moderate susceptibility to stormwave inundation with two high susceptibility zones falling within the Gulf Islands National Seashore. These islands continuously undergo a natural process of stormwave damage, stormwave inundation, and breaching of the dunes, which allows the island to roll over itself as it keeps pace with rising sea levels.
In the past, maintenance of beaches and dunes has been addressed through dune restoration (sand fencing) and construction of dune walkovers. Public/private cooperation in providing beach access and dune walkovers is contemplated in the future, and transplanting of sea oats is being investigated.
Petitioners' exhibit 12 reflects that average fore-dune elevations for Navarre Beach increased from thirteen to sixteen feet nvgd from January 1974 to May 1985. In October 1985, immediately after Hurricane Elena, the fore-dune elevation at Navarre Beach was still fourteen feet nvgd.
Navarre Beach exhibits a significantly lower percentage of dune gaps lower than twelve feet than is the case with other Escambia County beaches. Only 13 percent of Navarre Beach dune gaps were lower than twelve feet, as compared to Pensacola Beach, where 28 percent of the fore-dune is lower than twelve feet. Even petitioners' expert in coastal geomorphology agreed that the Navarre Beach dune system was "not in terribly stressed condition," and is "currently in a relatively fair condition."
Navarre Beach
In the plan support documents, Navarre Beach was regarded as including both the mainland section and the barrier island, both connected by the Navarre Beach toll bridge. The total area is approximately 600 acres, with approximately 412 acres of barrier island. Sixty-nine percent of Navarre Beach remains undeveloped.
The plan documents set forth an entire section devoted solely to the Navarre Beach Administrative Planning Area. The data summary and analysis includes sections on population, projected school age population, topography/drainage, including a review of the coastal high hazard area and coastal construction control line, soils, natural resources, historic resources, public facilities, existing land use, and residential/commercial land use needs.
The Resource Management Plan for Escambia and Santa Rosa Counties makes the following recommendation relative to Navarre Beach:
Santa Rosa County and the Navarre Beach Administrative Board should continue with the preparation and adoption of a land use plan that would specifically consider densities for land uses for all of Navarre Beach. In establishing densities, the county and the board shall consider hurricane evacuation and capital improvements programming.
Public beach access
According to Table 7-5 in the plan support document, the current beach access capacity is 4,100 feet. Table 7-4 shows that in 1986 there were twelve public beach access points on Navarre Beach. The beach itself is 85 acres and 21,120 feet in length.
Utilizing the Department of Natural Resources Population Guideline of
.025 linear feet per person, future demand for public beach access is predicted to be 1,941 linear feet for year 1995 and 2,078 linear feet in year 2000.
Therefore, current beach access capacity exceeds future demand within the applicable planning time frame.
The County maintains control over those beach access points shown on the Navarre Beach Future Land Use Map by maintaining them in an unleased status. At hearing, many public access points were identified from the Future Land Use Map on the Gulf Side, including six in the residential parcels, three in the commercial section, and one in from of the old pavilion site. This inventory from the plan does not include the entire eastern end of the beach, which remains in an undeveloped state, subject to moratorium, and to which the public currently has access.
Pensacola Bay system
The plan support document also presents an analysis and inventory of marine resources. In that section, a discussion is presented concerning the importance of seagrass beds and shellfish harvesting areas. Estuarine conditions are also discussed. This includes an assessment of general estuarine conditions, known point and non-point source pollution problems, and an assessment of the impact of development and redevelopment on estuaries. In its assessment of the impact of development and redevelopment on estuaries, the County identifies potential impacts in terms of water quality, circulation patterns, and accumulation of contaminants and sediments. Table 7-3 identifies that system of county, state, and federal regulations which have been developed to minimize development impacts upon estuaries.
While the Pensacola Bay system is lacking in seagrass meadows, the cause of the lack of viable seagrass beds in the system in not known.
There exist land use controls which local government can enact to help protect the Bay system. No specific recommendations were made, however, relating to the particular types of regulatory devices which could be used, and petitioners' expert admitted as to land use controls that "I'm not certainly up on what those are."
Petitioners' expert also admitted that the plan was laudable in terms of the manner in which it seeks to protect the Bay system. While he criticized the plan for not containing clear implementation of its noteworthy goals, he later admitted that if all points of implementation were covered in detail, the plan would become a lengthy and cumbersome document of a more scientific nature. He further admitted to being unaware of the appropriate level of detail for a comprehensive plan and later stated that he did not critique the plan, but said it was laudable.
The Santa Rosa Bay Bridge
Although petitioners raised the bridge as an issue in these cases, very little evidence was presented concerning the potential impacts of the proposed bridge. It is noted, however, that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers.
The plan support document discusses the Local Plans of the Pensacola Metropolitan Planning Organization (MPO). This indicates that the proposed bridge is included in the MPO Transportation Improvement Plan through the year 2015. The Escambia/Santa Rosa Counties Resource Management Plan (ESRCRMP) makes the following recommendation with regard to the bridge:
The MPO shall analyze the Garcon Point to Redfish Point Bridge and any other alternatives for future bridge construction. In the event the MPO includes a bridge from Garcon Point to Redfish Point . . . in its adopted MPO Urban Area Transportation Plan, the Santa Rosa Bay Bridge Authority should proceed with the necessary engineering, environmental and funding studies to determine the feasibility of constructing the bridge.
The plan support document indicates that the Santa Rosa Bay Bridge Authority was appointed by the Governor and Department of Transportation to seek solutions for the County's future transportion needs. In January 1989, the West Florida Regional Planning Council completed a report which established the feasibility of operating a new toll bridge from south Santa Rosa County to the Gulf Breeze Peninsula, based upon travel demand on State Road 87, south of East Bay River and north of County Road 399, the Pensacola end of U. S. 98, including the Pensacola Bay Bridge, and U. S. 98 east of Navarre. This would provide safe and efficient access to the Gulf Breeze Peninsula for purposes of recreation or business.
Figure 3-36 of the plan support document reflects that a bridge linking the Garcon Peninsula with the Gulf Breeze Peninsula would serve to connect the urban areas on the Gulf Breeze Peninsula to those located to the north in Milton and near Pensacola. Given that U. S. 98 on the Gulf Breeze Peninsula from Escambia County to State Road 399 and State Road 89 is indicated to be one of the more stressed roadways in the County, the importance of the proposed bridge to the County's hurricane evacuation needs becomes apparent.
Neither of petitioners' witnesses who testified about the Garcon Peninsula had a significant level of knowledge concerning the bridge project. For example, witness Folkerts was not aware that the bridge connects to a road which is already in existence and did not know what connection, if any, that the bridge has to the plan.
In contrast, the County's expert in general ecology had specifically studied the bridge project and was aware that the DEP intended to issue a permit for the project. The witness pointed out that agencies typically consider the public-interest factor of projects such as a bridge. Moreover, the expert reviewed the bridge permit and found that mitigation for the project is even more than what he has been required to provide on behalf of his own clients.
Issues Relating to the Protection of Wetlands, Unique Vegetative Communities and Endangered Species
Under policy 11.A.4.5, potential presence of wetlands is determined by reference to figure 7-30, based on the National Wetlands Inventory Map for the County (Wetlands FLUM). The buildable area of the parcel or lot is then determined through a "site specific wetlands determination" consistent with the plan policies on wetlands and the Land Development Code (LDC).
The Wetlands FLUM is included in the plan as part of the future land use map series under section 7.07(4). The Wetlands FLUM includes wetlands categorized as freshwater forested, estuarine vegetated and freshwater herbaceous. The Wetlands FLUM clearly identifies all three types of these wetlands over much of the Garcon Peninsula.
Through operation of policies 11.A.4.5 and 11.B.3.3., the Wetlands FLUM in figure 7-30 effectively operates as a wetlands and environmentally- sensitive lands overlay to the future land use map designations.
The plan contains extensive provisions designed to implement the Wetlands FLUM and provide significant protection of wetlands and the natural resource functions of wetlands. The County's approach to wetlands protection is based upon avoidance/minimization and mitigation. Avoidance and minimization of adverse impacts to wetlands is partially accomplished through policies 11.A.1.8.a. and b., which provide for transfers of densities/clustering where possible, and reductions in residential densities where density transfers cannot be accomplished and denial of any use would result in a taking. Policy
11.A.1.8.c requires that all necessary state dredge and fill permits be obtained prior to construction.
Combined with the strategies of transferring or reducing densities, as applicable, is the very stringent avoidance and mitigation requirement of policy 11.A.4.3, which requires proposed development to eliminate any degradation of natural systems, where wetlands, environmentally-sensitive lands, shorelines, bayous or beaches and dunes would be adversely impacted. Mitigation is required in the event that degradation cannot be eliminated. Policy 11.A.1.7 requires that the LDC contain these mitigation provisions.
Environmentally-sensitive lands, as referenced in policy 11.A.4.3, are defined in policy 11.B.3.3 to include:
Floodplains as identified by FEMA; wetlands under the jurisdiction of the Department of Environmental Regulation or the U. S. Army Corps of Engineers, or as indicated by the Florida Natural Areas Inventory.
Policy 11.B.3.3 requires that the County develop and maintain an environmentally-sensitive lands inventory, which includes floodplains, DEP and
S. Corps of Engineers wetlands, or as shown on the Wetlands FLUM, and areas identified by the Florida Natural Areas Inventory.
Avoidance and minimization of impacts through clustering and other techniques is also addressed by a number of other plan provisions. For instance, policy 7.A.4.7.j requires avoiding developing in sensitive natural areas to the maximum extent feasible, use of clustering if development is permitted in such areas, and use of other innovative construction techniques to minimize negative environmental impacts. Policy 11.A.2.1 requires clustering in order to provide "the fullest protection of sensitive areas, the shorelines and wetlands." Policy 7.A.4.k requires the use of buffers to eliminate or minimize
adverse impacts to environmentally-sensitive areas in the event that development is allowed. Finally, policy 11.B.3.6 requires the LDC to contain requirements designed to ensure that land uses and construction techniques are compatible with soil conditions at the site.
In addition, native vegetation and unique vegetative communities are protected by policy 11.B.3.6. Such communities include, but are not limited to, coastal salt marshes, fresh water marshes, wet prairies, and the like. Preservation and protection of such areas must be accommodated in advance of development approval so that such areas are protected during development or construction activities.
The overall quality of natural resources is further protected by policy 11.A.1.5, which requires that all federal, state, or regional agency permits be obtained prior to county authorization. Through policy 11.A.1.4, the County has pledged to assist in the "application of, and compliance with, all state and federal regulations which pertain to endangered or rare species" and require that such areas be protected through the development permit process. Furthermore, through policy 11.B.4.2, the County has committed to not approving any development permits which "threaten the life or habitat of any species listed on the Federal Endangered Species Inventory."
Policy 11.A.1.8 does not address vested rights in wetlands based on density limitations. Rather, the policy grants a certain de minimis right to residential land use in a wetland area, and only applies as a last resort where transfers of density and clustering cannot be accomplished and a parcel is less than five acres (the reduced residential density limitation for wetland areas), and then only in order to avoid an unconstitutional inverse condemnation. Even if such development were allowed, the numerous other provisions of the plan pertaining to protection of wetlands, natural resources, environmentally- sensitive areas, and threatened and endangered species would apply.
As to issue 1, petitioners offered no proof. The County's approach to development in wetlands is reasonable and appropriate, and petitioners have failed to prove to the exlusion of fair debate that the County's granting of limited de minimis residential land use rights in these areas is inappropriate.
In issue 2c, petitioners allege that the plan fails to include appropriate policies and objectives concerning threatened and endangered species and habitat on Navarre Beach. The record clearly establishes that the plan includes many policies concerning threatened and endangered species, including those on Navarre Beach. Further, at hearing petitioners made no attempt to offer proof concerning this issue. Therefore, petitioners have failed to prove to the exclusion of fair debate that the plan does not include protections of endangered and threatened species and habitat on Navarre Beach.
In issue 9, petitioners have alleged inappropriate treatment of wetlands and wildlife habitat on the Garcon Peninsula. The plan's Wetlands FLUM, which acts as an overlay to the FLUM, clearly shows a variety of wetland communities in that area. Because testimony at hearing confirmed the widespread presence of wetlands in this area, the plan provisions concerning avoidance, minimization, and mitigation of adverse impacts to wetlands, and for protection of natural resources, unique vegetative communities, and threatened and endangered species, would apply throughout nearly all of the Garcon Peninsula. Overall, the plan grants only very limited development rights in the Garcon Peninsula region, while also providing significant protections for natural resources in that area.
Petitioners' experts clearly advocate public ownership of the majority of the Garcon Peninsula. So long as the area is proactively managed, public ownership is the best method of protecting these resources. Short of public acquisition, however, no other reasonable method by which this area can be comprehensively protected and preserved as an intact ecological unit was presented. In the event the state determines that the Prairies of Garcon project is unworthy of public acquisition, it is unreasonable to expect the County to step in and make such a purchase. Requiring the County to reduce densities to the point where a moratorium on development in the area is created would create inverse condemnation, and effectively require the County to purchase parcels on Garcon Peninsula.
Finally, it must be recognized that the great majority of undeveloped areas on the Garcon Peninsula currently fall within the wetlands permitting jurisdiction of DEP and the federal government. As a consequence, permits for development will be difficult to obtain at best. The existence of these programs not only makes it unnecessary for the County to duplicate or exceed these standards in its own plan, but makes it much less likely that the Garcon Peninsula will be developed in the future, even in the absence of any County regulation.
For all of the above reasons, petitioners have failed to prove to the exclusion of fair debate that the plan inappropriately treats wetlands and wildlife habitat on the Garcon Peninsula in light of chapter 163 requirements.
In issue 11, petitioners allege that the plan is inconsistent with the State Comprehensive Plan concerning avoidance of endangering important natural resources. The preceding analysis makes it clear to the exclusion of fair debate that the plan complies with the requirements of Subsection 187.201(9), Florida Statutes.
In issue 12, petitioners have alleged that the plan is inconsistent with the State Comprehensive Plan requirement that adequate provision be made for the protection and acquisition of "unique natural habitats and ecological systems." A very large part of the County is currently in public ownership, including many areas with unique ecological attributes. There has been no demonstration that the County is not a willing participant in such acquisition programs. As a consequence, petitioners have failed to prove to the exclusion of fair debate that the plan does not adequately provide for protection and acquisition of these systems in accordance with Subsection 187.201(1), Florida Statutes.
Issues Relating to the Protection of Water Quality and Habitat in Estuaries
The plan also contains many provisions designed to protect coastal environmental resources from individual and cumulative impacts of development. Testimony at hearing concerning this issue focused upon protection of estuarine resources, beaches and dunes. In issue 2a, petitioners have alleged that policies 11.A.1.1 and 7.A.1.1 do not adequately protect coastal environmental resources from individual and cumulative impacts. Neither policy, however, standing alone is specifically intended to prevent such impacts. Rather, individual and cumulative impacts to coastal environmental resources are prevented through application of the policies discussed below.
The County's strategy for protecting estuarine resources centers upon the areas of control of surface water runoff quantity and quality, regulating and restricting shoreline development, restricting use of septic tanks, marina siting, and intergovernmental coordination, as well as those provisions mentioned above concerning wetlands and threatened and endangered species.
Goal 10.C and the objectives and policies thereunder are specifically devoted to "an environmentally safe and efficient stormwater management system." Policies 10.C.2.2 and 10.C.2.3 establish the level-of-service standard for stormwater as retention of the first inch of runoff and equivalent post- development and predevelopment runoff rate, and require that such standards be incorporated within the land development code. Policy 10.C.1.1 requires correction of existing deficiencies and meeting future drainage requirements. Policy 10.3.1.3 requires periodic inspection of stormwater control projects. Objective 10.C.3 and Policy 10.C.3.1 require use of, and protection of, natural drainage features through the site planning and development process.
Policy 11.A.1.1 specifically mentions limitation of specific and cumulative impacts upon, among other things, living marine resources. Objective
11.A.1 requires the County to protect and conserve, among other things, living marine resources, and Policy 11.A.1.2 prohibits channneling runoff directly into estuarine waterbodies. Policy 11.A.2.2 contains specific design criteria for stormwater detention or retention areas located near an estuary or estuarine system.
The placement of septic tanks near any functioning estuarine system is regulated through policy 11.A.2.3, which prohibits such placement until a Department of Health and Rehabilitative Services permit has been approved, and then only in the event that central sewer is unavailable. Connection to a central sewer system is required within one year of notice of availability.
New development along the shoreline of Garcon Point Peninsula and along Escambia Bay is limited to low density residential, conservation, recreation, or water-related or water-dependent uses, by operation of policies
11.A.3.3 and 11.A.3.4.
Specific marina siting criteria are created under policy 11.A.3.5. Among other things, this requires use of the Model Marina Siting Ordinance produced by the Florida State University Center for Aquatic Research and Resource Management.
In terms of inter-governmental coordination, policy 11.B.2.4 requires that the County execute inter-local agreements with the City of Gulf Breeze and Escambia County so that each has an opportunity to review development proposals affecting Escambia Bay, Santa Rosa Sound, or East Bay. These agreements will be specifically required to prevent or minimize estuarine pollution, control surface water runoff, protect marine resources, and maintain public access to shorelines, among other things. In addition, policy 11.B.4.1 furthers inter- governmental coordination by requiring the County to cooperate with state and federal agencies to protect marine or wildlife habitats which may be impacted by existing or proposed development in the County. This provision even requires that the County forward applications for development approval to such agencies any time such resources may be impacted.
The plan protects estuarine resources from adverse impacts and is laudable in this regard. As a consequence, petitioners have failed to prove to the exclusion of fair debate that the plan fails to protect estuarine resources from individual and cumulative impacts of development.
Issue Relating to the Protection and Restoration of Beaches and Dunes
The plan also has many provisions limiting individual and cumulative impacts to beaches and dune systems. The plan's approach in this regard is to generally require avoidance, mitigation and restoration of impacts from new development and restoration of preexisting impacts of altered dunes, as well as protection.
As a general requirement, objective 7.B.2 requires that all development on Navarre Beach preserve and protect the important natural resources of Santa Rosa Island. Under policy 7.B.2.4, developments must minimize impacts to beaches and dunes and mitigate for impacts which cannot be avoided. Objective 11.A.4 requires, in part, protection and restoration of altered beach and dune systems on a continuing basis. Finally, where development would alter beaches or dunes, policy 11.A.4.4 would require that a plan for restoration be submitted and that restoration occur before occupancy of the structure.
The ESRCRMP is integrated into beach and dune issues through objective 7.A.7, requiring implementation of the recommendations in the ESRCRMP, and policy 11.A.4.2, which requires designation of a "beach preservation zone" consistent with that recommended in the ESRCRMP.
Policies 7.A.6.3 and 7.A.6.4 preclude construction seaward of the primary dune line and the coastal construction control line until all necessary state permits have been received. Beaches and dunes are further preserved by requiring that erosion control be accomplished by non-structural methods unless insufficient or unsatisfactory, in which case structural erosion control devices cannot be utilized until federal or state regulatory approval is obtained.
Public input into the process of development on Navarre Beach is insured through policy 7.B.2.3.
Protection of beaches and use of dune walkovers, sand fences, and other similar methods is accomplished through encouraging their use by excluding them from the advance state agency permitting requirement of policy 7.A.6.3 and from the restrictions on public expenditures in the coastal high hazard area of policy 11.A.1.3.
The beach and dune system on Navarre Beach is in better condition than other areas of Santa Rosa Island in Escambia County. The County's plan provisions recognize the need to protect, preserve, and restore beach and dune systems. The plan contains many provisions reasonably directed to avoiding, minimizing, and mitigating adverse impacts to beaches and dunes, requiring protection and restoration of previously-altered beaches and dunes, and encouraging improvements to the public access facilities to these resources. As a consequence, petitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not contain policies which are designed to prevent individual and cumulative impacts of development on beach and dune systems.
Area
Issues Relating to the Public Expenditures in the Coastal High Hazard
The plan also contains many policies which limit public expenditures
subsidizing development in the coastal high hazard area. In general, objective 14.A.4, and policies 14.A.4.1, and 14.A.4.2, require that development pay its proportionate fair share for installation of public infrastructure needed to serve the needs of the development. In this respect, public funding will generally not be utilized to pay for installation of infrastructure to serve new development in the coastal high hazard area.
In addition, goal 11.A and the policies and objectives thereunder, and objective 14.A.2 and policy 14.A.2.1, are specifically designed to limit public expenditures in the coastal high hazard area. Policy 11.A.5.1 defines the coastal high hazard area as the Category 1 storm surge area delineated in the "Tri-state Hurricane Evacuation Study." In addition, policy 11.A.5.5 requires maintenance of an inventory of infrastructure located in the coastal high hazard area and identification of opportunities to relocate or replace such infrastructure.
In issue 7, petitioners have challenged whether the plan properly limits the use of public funding for infrastructure in the coastal high hazard area. Based upon the preceding plan provisions, petitioners have failed to prove to the exclusion of fair debate that the plan is inconsistent with this requirement.
Issues Relating to the Santa Rosa Bay Bridge
The plan contains very few provisions addressing the proposed Santa Rosa Bay Bridge. Both policies 8.A.3.5 and 11.A.7.4 specify that the County will continue to support construction of the proposed Santa Rosa Bay Bridge. Policy 8.A.3.5 specifies that such support will be consistent with the recommendations of the ESRCRMP and that it shall not include the use or pledge of any County-generated tax revenues or tax revenue shared with the County and the State of Florida. Policy 11.A.7.4 recognizes the bridge's importance as an alternative hurricane evacuation route and requires amendment of the County's hurricane evacuation plan to reflect utilization of the new bridge upon completion of the bridge. The future traffic circulation map conceptually includes the proposed bridge.
In issue 8, petitioners have challenged inclusion of the bridge in policy 8.A.3.5 and the future traffic circulation map. At hearing, however, no attempt was made to challenge the plan data and analysis supporting a need for the bridge. Moreover, the County's treatment of the bridge is consistent with the recommendation of the ESRCRMP and with the Escambia/Santa Rosa Counties MPO Plan. The record does not reflect impacts, if any, the project may have to the environment, but does indicate that adequate mitigation is proposed. Furthermore, the plan's support for the bridge is consistent with the recent actions of the DEP in issuing permits for the project. Finally, the bridge is under the exclusive authority of the Santa Rosa Bay Bridge Authority, an agency of the State of Florida. The County cannot legally adopt any plan provisions which are inconsistent with a State transportation project. For all of these reasons, as to issue 8, petitioners have failed to show to the exclusion of fair debate that the plan's treatment of the proposed Santa Rosa Bay Bridge is inappropriate.
In issue 10, petitioners have challenged whether the plan's treatment of the bridge is internally inconsistent with policy 11.A.6, which seeks to direct population concentrations away from the coastal high hazard areas. At hearing, however, no evidence was offered concerning what effect, if any, the bridge will have on development within the coastal high hazard area. Therefore, petitioners have failed to prove to the exclusion of fair debate that the plan's treatment of the proposed bridge is internally inconsistent with policy 11.A.6.
Issues Relating to Public Access to Beaches at Navarre Beach
The plan contains a number of provisions designed to ensure the continued availability of beach access. The future land use map indicates a number of beach access points shown on the map as conservation/recreation. Furthermore, public access is ensured by inclusion in the plan of objective
11.A.9 and the policies thereunder, which require the following. First, the County is required to increase the amount of public access in a manner which is consistent with estimated public need. Second, the County will continue to enforce the public access requirements of the Coastal Zone Protection Act of 1985 and will make shorelines renourished or protected at public expense available for public use. Finally, the County has committed to maintaining County-owned shoreline and open-space access sites, together with adequate parking, and will continue to seek available federal and state financial assistance to increase public access.
In issue 2b, petitioners have challenged whether the plan includes appropriate objectives and policies concerning public access to the beach. Based upon the data showing that there is currently public access in excess of needs, and that there are plan policies designed to ensure that this state of affairs continues, petitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not include appropriate objectives and policies concerning public access to the beach.
Issue 3 is nearly identical and challenges whether the FLUM for Navarre Beach includes professionally-acceptable material and is based on relevant and appropriate data. No evidence was presented to show that the FLUM did not include professionally-acceptable material. Rather, the evidence demonstrates that the FLUM includes many public access points. The public access points shown on the FLUM are supported by the data and analysis in the plan. Therefore, petitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the FLUM for Navarre Beach on the issue of public access fails to include professionally-acceptable material and is not based on relevant and appropriate data.
Issues Relating to Navarre Beach
The plan contains an entire section dedicated exclusively to Navarre Beach. Policies 7.B.3.1, 7.B.3.2, 7.B.3.3, and 7.B.3.4 establish a moratorium on new leases until development of a master plan and the conditions under which development on already-leased parcels can continue. A plan amendment is required to lift the moratorium. In addition, this section contains numerous policies designed to protect the significant natural resources at Navarre Beach.
In issue 5, petitioners have challenged whether objective 11.A.6 is internally inconsistent with the plan's designations for land uses for vacant, unleased land on Navarre Beach. However, no testimony or evidence on this point was received. Objective 11.A.6 seeks to direct population concentrations away
from the coastal high hazard area. The plan's designations for land uses for vacant, unleased land on Navarre Beach is that such lands are currently under moratorium until development of a master plan for that area. A moratorium precludes development in the coastal high hazard area of Navarre Beach, which has the effect of directing new growth and population concentrations to other places in the County. Therefore, petitioners have failed to prove to the exclusion of fair debate that there is any internal inconsistency between objective 11.A.6 and the plan's land use designations for Navarre Beach for uses of vacant, unleased land.
In issue 6, petitioners have challenged whether the future land use element relating to Navarre Beach is appropriately based upon surveys, studies, and data concerning the factors listed in Subsection 163.3177(6)(a), Florida Statutes. However, no testimony or evidence on this point was received. As to Navarre Beach, each of the factors are analyzed which the statute requires to be analyzed. In addition, the plan comprehensively addresses all future land use issues relating to growth and development at Navarre Beach, including protection of natural resources. The moratorium only further ensures consistency with the factors in subsection 163.3177(6)(a). Therefore, petitioners have failed to prove to the exclusion of fair debate that the future land use element relating to Navarre Beach is not based upon surveys, studies and data.
Issue 13
In issue 13, petitioners have challenged whether the plan is inconsistent with the State Comprehensive Plan requirement that seeks to direct development to those areas which have existing resources to support the development. Petitioners placed no testimony or evidence in the record concerning this issue. As a consequence, petitioners have failed to prove to the exclusion of fair debate that the plan is inconsistent with this State Comprehensive Plan requirement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsections 120.57(1) and 163.3184(9) and (10), Florida Statutes.
Case No. 90-7706GM is a non-compliance proceeding initiated by the DCA under Subsection 163.3184(10), Florida Statutes. Petitioners, as affected persons, intervened in that proceeding. By virtue of a settlement agreement between the County and the DCA (but not petitioners), remedial amendments were adopted and the DCA later issued a cumulative notice of intent to find the plan and plan amendments in compliance. In response to the cumulative notice, petitioners initiated Case No. 93-4980GM by filing a petition under Subsection 163.3184(9)(a), Florida Statutes, contending that the amended plan was not in compliance in various respects. Petitioners point out that the issues relating to beach access and the Navarre Beach dune system were first raised in their petitions to intervene in Case No. 90-7706GM, and were not addressed by the remedial amendments adopted on April 22, 1993. For this reason, they argue that as to those issues, they need only show by a preponderance of the evidence that the plan is not in compliance. As to the remaining issues, petitioners concede that the more stringent "fairly debatable" standard set forth in subsection 163.3184(9)(a) should apply. The DCA and County, however, contend that, through their settlement stipulation, the original non-compliance proceeding has been extinguished and the criteria for challenge under subsection 163.3184(9)(a) come
into play as to all issues raised by petitioners. In other words, they reason that the cumulative notice of intent starts the case over again and the more stringent standard of review applies to all pending issues.
When the DCA issues a notice of intent to find plan amendments adopted pursuant to a compliance agreement in compliance, the original non-compliance proceeding is not extinguished as to any issues raised by intervenors that are not addressed by the remedial amendments. See, for example, Sierra Club v. Hillsborough County, Case No. 89-5157GM (DOAH, Recommended Order, December 8, 1992); Department of Community Affairs v. City of Jacksonville/Duval County, Case No. 90-7496GM (Order dated April 2, 1993). It follows that if the original proceeding under subsection 163.3184(10) remains alive, the burden of proof requirements found in that subsection should also apply. Therefore, as to any remaining issues not resolved by the remedial amendments, the burden is on the proponents to show by a preponderance of the evidence that the plan is not in compliance. This standard has been used by the undersigned in judging the merits of petitioners' claims regarding beach access and the Navarre Beach dune system. As to all other issues, the "fairly debatable" standard must be used. This means that as to all "new" issues raised after the cumulative notice of intent was issued, the plan or plan amendment will be determined to be in compliance if the local government's determination of compliance is fairly debatable, that is, "if reasonable persons could differ as to its propriety." B & H Travel Corporation v. Department of Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st DCA 1992).
Based upon the entire record, it is concluded that, as to all "new" issues raised by petitioners, they have failed to prove to the exclusion of fair debate that the plan, as amended, is not in compliance. As to all remaining issues, petitioners have likewise failed to prove by a preponderance of the evidence that the plan, as amended, is not in compliance. The petitions challenging the plan must accordingly fail.
The County's unopposed motion for official recognition of certain documents filed in DOAH Case Nos. 93-6519 through 93-6522, 93-6547 and 93-6548 is hereby granted.
After the proposed orders were filed in these cases, the County and petitioners filed motions to strike all or parts of the opposing party's proposed order. Having considered the same, the motions are hereby denied.
Finally, in a motion filed on June 23, 1994, the County has moved for an order assessing costs and attorney's fees against petitioners on the theory that "all the issues raised by the Petitioners in their pleading are truly frivolous and grossly incorrect," and thus the petition was filed for an improper purpose within the meaning of Subsection 120.57(1)(b)5., Florida Statutes. Aside from the fact that the request for fees and costs may be untimely, the facts and circumstances herein do not permit an inference favorable to the County to be drawn. That is to say, the totality of the record soes not support an inference that the petitions filed herein were done so for an improper purpose. Therefore, the motion is denied. Petitioners' request for attorney's fees and costs incurred in responding to the motion is likewise denied.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Community Affairs enter a final order
determining the Santa Rosa County comprehensive plan, as amended, to be in compliance.
DONE AND ENTERED this 12th day of July, 1994, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 12th day of July, 1994.
Petitioners:
APPENDIX TO RECOMMENDED ORDER CASE NOS. 90-7706GM AND 93-4980GM
1-3. Partially accepted in finding of fact 2.
4. Covered in preliminary statement.
5-6. Partially accepted in finding of fact 1.
7-34. Partially accepted in findings of fact 10-15 and 37-54.
Partially accepted in finding of fact 9.
36-56. Partially accepted in findings of fact 16-20 and 64-70. 57-65. Partially accepted in findings of fact 31-36 and 74-76. 66-77. Partially accepted in findings of fact 24-26 and 77-79. 78-83. Partially accepted in findings of fact 27-30 and 55-63.
Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues.
Respondents:
Because respondents' joint proposed order exceeded the forty page limit imposed by Rule 60Q-2.031, Florida Administrative Code, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993).
COPIES FURNISHED:
Linda Loomis Shelly, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Dan R. Stengle, Esquire 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Stephanie M. Callahan, Esquire 2740 Centerview Drive
Tallahassee, FL 32399-2100
Thomas V. Dannheisser, Esquire County Attorney
Santa Rosa County Courthouse Room 106
Milton, FL 32570
Kenneth G. Oertel, Esquire Post Office Box 6507 Tallahassee, FL 32314-6507
David A. Theriaque, Esquire Building F, Suite 100
820 East Park Avenue Tallahassee, FL 32301
Mr. Robert Carl 9277 Deer Lane
Navarre, FL 32566
John M. Harold, Esquire
J. Dan Gilmore, Esquire
4400 Bayou Boulevard, Suite 45
Pensacola, FL 32503
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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
=================================================================
STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
and
LINDA L. YOUNG, AMELIE BLYTH, and DIANA GODWIN
Intervenors,
vs. CASE NO. 90-7706GM
SANTA ROSA COUNTY,
Respondent.
/ LINDA L. YOUNG, AMELIE BLYTH,
and DIANA GODWIN,
Petitioners,
vs.. CASE NO. 93-4980GM
SANTA ROSA COUNTY and
DEPARTMENT OF COMMUNITY AFFAIRS, FINAL ORDER NO.
DCA94-353-FOF-CP
Respondents.
/
FINAL ORDER
Santa Rosa County (County) adopted its comprehensive plan on September 27, 1990. On December 5, 1990, Petitioner Department of Community Affairs (Department) filed a petition alleging that the comprehensive plan was not in compliance; the resulting proceeding was assigned Case No. 90-7706GM. Intervenors Linda L. Young, Amelie Blyth, and Diana Godwin (Petitioners/Intervenors) filed petitions to intervene, alleging that the plan was inconsistent with certain provisions of Chapter 173, Florida statutes, and Chapter 9J-5, Florida Administrative Code.
On June 24, 1992, the County and the Department entered into a stipulated settlement which required that certain remedial amendments to the plan be adopted; the County adopted the remedial amendments on April 22, 1993. On June 22, 1993, the Department of Community Affairs issued its cumulative notice of intent to find the plan, and the remedial amendments, in compliance.
Petitioners/Intervenors filed a petition for formal administrative hearing
challenging the plan and amendments subject to the cumulative notice of intent; the resulting proceeding was assigned Case No. 93-4980GM, and the cases were consolidated.
Following formal hearing in this matter, the Hearing Officer issued his Recommended Order, which was received by the Department of Community Affairs on July 18, 1994. The Recommended Order is attached hereto as Exhibit A, and is incorporated by reference.
Exceptions to the Recommended Order were timely filed by petitioners/Intervenors. pursuant to Rule J-11.012(7)(g), Florida Administrative Code, Petitioner/Respondent Department of Community Affairs and Respondent Santa Rosa County timely filed a Response to Exceptions directed to the Petitioners/Intervenors' filed exceptions.
Section 120.57(1)(b)10., Florida statutes (1993), a component of the Administrative Procedure Act, provides, in pertinent part:
The agency may adopt the recommended order
as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states
with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.
Thus, the Agency may reject findings of fact in the Recommended Order only if those findings of fact are not supported by competent, substantial evidence. The Agency may accept the findings of fact in the Recommended Order, however, and reject the Hearing Officer's conclusions of law. Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982); Seiss v. Department of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986); Bustillo v. Department of Professional Regulation, 561 So.2d 610 (Fla. 3d DCA 1990).
In this Final Order, references in brackets to the Recommended Order are designated (RO) followed by a specific citation to the Recommended Order; findings of fact in the Recommended Order are designated (FF) followed by a specific citation to the particular finding of fact; volumes of the transcript of hearing are designated <TR) followed by specific citation to the transcript.
EXCEPTIONS OF PETITIONERS/INTERVENORS
EXCEPTION TO JURISDICTION
Exception #1. Petitioners/Intervenors take exception to the Hearing Officer submitting his Recommended Order to the Department, rather than to the Administration Commission. In support of this exception, Petitioners/Intervenors state:
The Hearing Officer concluded that the Petitioners' claims regarding beach access and the Navarre Beach dune system were entitled to the burden of proof requirements set forth in subsection 163.3184(10), Fla.
Stat., because they were raised in the original noncompliance proceeding and not addressed in the remedial amendment. Having determined that subsection 163.3184(10) is applicable to this proceeding, the Hearing Officer erred when he failed to comply with all of the requirements of subsection 163.3184(10) by submitting the Recommended Order to the Administration Commission for final agency action on the petitioners' claims regarding beach access and the Navarre Beach dune system.
In their joint response, Respondent County and petitioner/Respondent Department stated as follows:
While the Hearing Officer did rule that the original noncompliance proceeding was not extinguished as to the issues of beach access and the Navarre Beach dune system, it does not follow that the Administration Commission should have exclusive jurisdiction to enter a final order as to those issues. The Recommended Order addresses those issues as
they were postured in Petitioners/Intervenors' petition for Formal Administrative Hearing dated July 15, 1993, which on its face sets forth all issues concerning the plan as remedially amended. petitioners/Intervenors acquiesced in entry of the Hearing Officer's Order dated October 15, 1993, which determined that the issues in both cases were as stated
in the petition filed in case number 93-4980GM, and his ruling was observed at final hearing.
As a consequence, the Hearing Officer determined that the issues of beach access and the Navarre Beach dune system would be treated as compliance issues, notwithstanding
the different standard of review he determined was applicable. Accordingly, the Department of Community Affairs has the authority to enter a final order as to all issues in this proceeding.
The Petitioner/Respondent Department of Community Affairs issued a cumulative notice under section 163.3184(16), Florida statutes, finding the both the plan and the remedial amendments in compliance. That being the case, the Agency which is to enter the Final Order is the Department of Community Affairs, pursuant to section 163.3184(9), Florida statutes, if it determines that the plan or plan amendment is in compliance. Department of Community Affairs, et al. v. City of Jacksonville, DOAH Case No. 90-7496GM (January 24, 1994), Final Order No. DCA94-258-F0F-CP (Department of Community Affairs, February 24, 1994); but see Department of Community Affairs, et al. v. Hillsborough County, Final Order No. AC-93-087 (Fla. Admin. Comm. Dec. 16, 1993), approving, Recommended Order, DOAH Case Nos. 89-5157GM and 90- 6639GM (DOAH December 8, 1992)(dicta).
The issue of treating remaining proceedings in a settlement context is a vexing one. The approach most consistent with construing section 163.3184, Florida statutes, as a whole, however, is the one followed herein and in other orders. See Department of Community Affairs, et al. v. DeSoto County, Final Order No. AC-94-009 (Fla. Admin. Comm. January 31, 1994), approving, Recommended Order of Dismissal, DOAH Case No. 91-6039 (DOAH January 13, 1994). The Administration Commission's order in the DeSoto County case endorses an approach that construes accumulative notice of intent to find a remedial plan amendment in compliance as terminating the initial proceeding. This opens another window for parties to initiate an administrative challenge to the plan or plan amendment by filing a petition with the Department within 21 days of the publication of the cumulative notice of intent in accordance with section 163.3184(9), Florida statutes. Cf section 163.3184(16)(f), Florida statutes (as construed). The original proceeding should then be dismissed by the hearing officer, id., or forwarded to the Department for an order of dismissal.
PETITIONERS/INTERVENORS' EXCEPTION #1 is DENIED.
EXCEPTIONS TO FINDINGS OF FACT
Exception #2. The Hearing Officer, in an October 15, 1993 order, determined that the issues in the consolidated cases would be those 13 issues stated in the petition filed on July 15, 1993, in Case No. 93-4980, which ruling was observed by the parties at the final hearing (RO page 3). Petitioners/Intervenors take issue, thus, "At no time during these proceedings did the Petitioners abandon the issues raised in their Petitions to Intervene filed in the original noncompliance proceeding."
The Respondent County and the Petitioner/Respondent Department take the position that the original, noncompliance proceeding was extinguished when the Department issued its cumulative notice of intent pursuant to section 163.3184(16), Florida statutes. The County and the Department further disagree with the Hearing Officer's conclusion of law determining that the issues of public access and Navarre Beach dune system should be determined pursuant to the preponderance of the evidence standard in section 163.3184(10), Florida statutes. The County and the Department urge the Agency to enter its order addressing all issues accordingly.
Subsection (9) of section 163.3184, Florida statutes, governs proceedings if the local plan or amendment is in compliance. In the words of the statute, "In this proceeding, the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable."
Subsection (10) of section 163.3184, Florida statutes, governs proceedings if the plan or amendment is determined to be not in compliance. The statute specifies, in this subsection:
In the proceeding, the local government's determination that the comprehensive plan
or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it
is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance.
Subsection (16) of section 163.3184, Florida statutes, authorizes the Department of Community Affairs to enter into voluntary compliance agreements to resolve issues raised in proceedings initiated pursuant either to subsection (9)
-- in compliance determinations -- or subsection (10) -- not in compliance determinations. It is under this subsection that the cumulative notice in this case was issued.
Paragraph (f) of subsection (16) provides, in part, as follows:
If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings and the pending s. 120.57 proceeding concerning the
plan or plan amendment shall be dismissed by the hearing officer as to the department.
Any affected person may challenge the plan
or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9).
The language of the statute is somewhat problematic. It is unclear how a proceeding can be dismissed as to one of the parties, in this case, the state land planning agency issuing the notice of intent. See Department of Community Affairs, et al. v. DeSoto County, Final Order No. AC-94-009 (Fla. Admin. Comm. January 31, 1994), approving, Recommended Order of Dismissal, DOAH Case No. 91- 6039GM (DOAH January 13, 1994)(approving interpretation of statute).
Further, this statutory language as to dismissal of the proceeding as to the department arguably is at odds with the next sentence, which states that affected persons may challenge the plan or amendment which is the subject of the cumulative notice by filing a petition with the agency as subsection (9) provides. The statutory language does not say, "Any other affected person" may challenge; it says "Any affected person" may challenge, which ending s. 120.57 proceeding.
Paragraph (f) also deals with the issue of a cumulative notice that the plan amendment is not in compliance, as follows:
If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment not in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings, which shall consolidate the proceeding with the pending proceeding and immediately set a date for hearing in the pending s. 120.57 proceeding.
It is clear from that statutory language that the cumulative notice proceeding is consolidated with the pending original proceeding if the Department of Community Affairs finds the amendment not in compliance, in contrast to the language used if the Department's cumulative notice is an "in compliance" determination.
Finally, paragraph (f) deals with persons who are not parties to the pending original proceeding, as follows:
Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10).
This language seems to do more than provide for persons who are not parties to the underlying proceeding to file subsection (9) or subsection (10) petitions depending upon whether the cumulative notice is an "in compliance" one or a "not in compliance" one, as the case may be. The language also aids in interpreting the previous sentence of the paragraph, "Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9)." If that sentence were only intended to apply to affected persons who were not parties to the underlying proceeding, there would be no need for the sentence above-quoted, "Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10)."
As the state land planning agency and the Agency of final jurisdiction in an "in compliance" proceeding, it is the responsibility of the Department of Community Affairs to interpret the operable statute. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla.
1985.)
The Department of Community Affairs interprets the subject provisions of section 163.3184(16), Florida statutes, to mean that, if the Department issues a cumulative notice of "in compliance," the previously existing, original proceeding is extinguished. Thereafter, all affected parties must file petitions challenging the cumulative notice, and the proceeding is governed exclusively by the "fairly debatable" standard and the procedures set out in subsection (9) of section 163.3184, Florida statutes. The particular standard of proof to be applied is based upon the issuance of a notice of intent to find
the plan or amendment in compliance or not in compliance. Sheridan v. Lee County, DOAH Case No. 90-7791GM, Final Order No. DCA93-158- FOF-CP (Department of Community Affairs, June 28, 1993).
In Department of Community Affairs, et al. v. City of Jacksonville, DOAH Case No. 90-7496GM (January 24, 1994), Final Order No. DCA94-258-FOF-CP (Department of Community Affairs, February 24, 1994), the Department of Community Affairs expressly adopted the interpretation of Hearing Officer J. Lawrence Johnston as set forth in the Recommended Order of Dismissal and Final Order Closing File in the case of Department of Community Affairs v. DeSoto County, DOAH Case No. 91-6039GM (January 19, 1993), approved, Final Order No. AC-94-990 (Fla. Admin. Comm. January 31, 1994), a copy of which is attached hereto as Exhibit B and incorporated by reference. That recommended order at footnote 3 -- recognized that there is contrary dicta in the Recommended Order
in Department of Community Affairs, et al. v. Hillsborough County, DOAH Case No. 89-5157GM (December 8, 1992).
In the instant case, the Hearing Officer erred in treating the proceeding as one in which both subsections (9) and (10) of section 163.3184, Florida statutes, continued to apply. The burdens of proof -- whether the fairly debatable standard, or the preponderance of the evidence standard -- could be alternatively assigned to a given issue, depending upon whether the issue remained from the original proceeding, or arose as a result of the proceeding brought in response to the cumulative notice. But the statute does not appear to allow the proceeding to be resolved as it was in the instant case, i.e., under both subsections (9) and subsections (10).
If that were the case, it would be unclear in a given case as to which entity appropriately should enter the final order, the Administration Commission, or the Department of Community Affairs. Clearly, that does not comport with the objective of the Legislature in specifying the entities with final order authority separately in subsections (9) and (10).
Petitioners/Intervenors suggest, in Exception #34, which is dealt with below, that both the Administration Commission and the Department of Community Affairs enter a final order in this. This would result in untenable situations, such as the potential for inconsistent rulings, separate appeals, etc.
The Hearing Officer should have treated the proceeding exclusively as one arising as a result of a cumulative notice of "in compliance" governed under the auspices of subsection (9) of section 163.3184, Florida statutes. In that case, the issues should have been those directed to the cumulative notice; thus, Petitioners/Intervenors' complaint in this exception -- that the Hearing Officer should not have limited the issues to those set forth in the July 15, 1993 petition, which was filed as a result of the cumulative notice -- is not well- taken.
Further, the standard of proof in a proceeding brought following a cumulative notice of "in compliance" must be the "fairly debatable" standard of section 163.3184(9), Florida Statutes. In this case, however, the Hearing Officer made his various determinations and weighed the evidence with respect either to the fairly debatable standard, or to the preponderance of evidence standard, depending upon the issue. It would be implausible at best, impossible at worst, for the Agency now to attempt to reweigh the selected issues -- those that have been determined using the preponderance of the evidence standard -- under the fairly debatable standard. The Department of Community Affairs, as the Agency entering the Final Order in this cause, is not free to reweigh
evidence; that is the prerogative of the Hearing Officer when there are factual issues of ordinary proof. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).
Moreover, such a reweighing of the issues, even if authorized, would not change the outcome. The issues that were decided under the preponderance of the evidence standard were decided against the Petitioners/Intervenors in this case. The outcome would not change if the fairly debatable standard were applied to those issues. The Agency therefore declines the invitation to apply the fairly debatable standard throughout the proceeding, as it should have been done by the Hearing Officer. Nonetheless, the Agency also must deny Petitioners/Intervenors' Exception #2.
PETITIONERS/INTERVENORS EXCEPTION #2 is DENIED.
Exception #3. This exception is directed to the Hearing Officer's exclusion of testimony regarding Petitioners/Intervenors' allegations of "urban sprawl." Petitioners/Intervenors assert that a cursory review of the subject petition reveals that "urban sprawl" was properly raised as an issue, even though that precise term was not used.
The Hearing Officer heard argument directed to the issue of the "urban sprawl" question (TR Vol. I, pp. 12-18) and determined that it was not within the scope of the petition filed on July 15, 1993 (see Exception #2, above). The Agency has reviewed the subject petition and the portions of the record dealing with argument directed to this issue, and the Agency does not find a sufficient basis for granting the exception.
PETITIONERS/INTERVENORS EXCEPTION #3 IS DENIED.
Exceptions #4, #5 and #6. The basis for these exceptions is the Hearing Officer's finding of fact, in paragraph 13 of the Recommended Order, that publicly-owned lands in the Garcon Point Project would not be injured by the development of privately- owned lands north of the project. According to the Petitioners/Intervenors, "The evidence introduced at the administrative hearing clearly refutes this finding."
Petitioners/Intervenors allude to witness testimony that contradicts the conclusion of the expert who was tendered in general ecology and natural systems, Dr. Joe A. Edmisten [TR Vol. III, pages 78-87] on this point at hearing; it is upon Dr. Edmisten's testimony that the paragraph is supported. The contradictions notwithstanding, however, the paragraph to which these exceptions are directed is supported by competent, substantial evidence in the record, and thus the exceptions must be denied. [Edmisten (TR Vol. III), pages 95-96.]
PETITIONERS/INTERVENORS' EXCEPTIONS #4, #5, AND 6 are DENIED.
Exception #7. This exception is directed to paragraph 14 of the Recommended Order, in which the Hearing Officer found, "More than 95 percent of Garcon peninsula is jurisdictional wetland for the U.S. Army Corps of Engineers . . .
." According to the Petitioners/Intervenors, no evidence was introduced to support this finding.
There is competent, substantial evidence in the record sufficient to support the finding. [Edmisten (TR Vol. III), page 89.]
PETITIONERS/INTERVENORS' EXCEPTION #7 is DENIED.
Exception #8. In Exception #8, Petitioners/Intervenors take exception to the following finding of fact in paragraph 15 of the Recommended Order, "Little development will occur on the Garcon peninsula . . ." The Petitioners/Intervenors assert that the evidence at the hearing "clearly refutes this finding" and, in support thereof, refer to Future Land Use Map indications of densities of up to four dwelling units per acre and commercial development for Garcon peninsula.
The finding is supported by competent, substantial evidence in the record. [Edmisten (TR Vol. III), pages 90-91.]
PETITIONERS/INTERVENORS EXCEPTION #8 is DENIED.
Exception #9. Petitioners/Intervenors take exception to the findings of fact of paragraph 20 of the Recommended Order, which relates to the condition of the Navarre Beach dune system and the testimony of the expert in coastal geomorphology. The apparent basis for the exception is stated by Petitioners/Intervenors thus, "The fact that the Navarre Beach dune system is still a valuable resource is a compelling reason for implementing a dune protection program which will ensure the system's long-term viability."
A finding of fact cannot be overturned on the basis of the argument stated by the Petitioners/Intervenors. Moreover, the findings of fact in paragraph 20 are supported by competent, substantial evidence. [Stone (TR Vol. II), page 155.]
PETITIONERS/INTERVENORS' EXCEPTION #9 is DENIED.
Exception #10. The Petitioners/Intervenors take exception to paragraph 26 of the Recommended Order wherein the Hearing Officer finds, "The County maintains control over those beach access points shown on the Navarre Beach Future Land Use Map by maintaining them in an unleashed status." The Petitioners/Intervenors state that the evidence clearly refutes the finding, and that the Navarre Beach Future Land Use Map does not identify beach access points.
The finding is based upon sufficient competent, substantial evidence of record, and must be sustained. (Miller [TR Vol. I), pages 166-167; Joint Exhibit 1, Plan Objective 11.A.9, and policies 11.A.9.1-9.S, pages 11-6 through 11-7.]
PETITIONERS/INTERVENORS' EXCEPTION #10 is DENIED.
Exception #11. Petitioners/Intervenors take exception to paragraph 30 wherein the Hearing Officer states that the expert of the Petitioners/Intervenors "did not critique the plan, but said it was laudable." The Petitioners/Intervenors assert in this exception that the evidence clearly refutes this finding in that
the expert in question, Dr. Sneed B. Collard, criticized the Santa Rosa County Comprehensive Plan for failing to contain policies and objectives to implement the plan's goal to protect the Pensacola Bay system.
The context in which the Hearing Officer made the statement to which exception is taken is important to an understanding of the finding. paragraph
30 of the Recommended Order, in its entirety, reads as follows:
Petitioners' expert also admitted that the plan was laudable in terms of the manner in which it seeks to protect the Bay system. While he criticized the plan for not containing clear implementation of its noteworthy goals, he later admitted that if all points of implementation were covered
in detail, the plan would become a lengthy and cumbersome document of a more scientific nature. He further admitted to being unaware of the appropriate level of detail for a comprehensive plan and later stated that he did not critique the plan, but said it was laudable. [FF 30; RO page 14.]
That having been clarified, the specific statement to which Petitioners/Intervenors take this exception is supported by competent, substantial evidence of record, to wit, the testimony of Dr. Collard, "I didn't critique the Santa Rosa Plan. I said it was laudable." [Collard (TR Vol. I), page 140].
PETITIONERS/INTERVENORS' EXCEPTION #11 is DENIED.
Exception #12. The Petitioners/Intervenors take exception to the finding in paragraph 31 of the Recommended Order that finds "that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers." The Petitioners/Intervenors take this exception based on relevancy.
The context of the statement is not clear from the exception. The entirety of paragraph 31 reads as follows:
Although petitioners raised the bridge as an issue in these cases, very little evidence was presented concerning the potential impacts of the proposed bridge.
It is noted, however, that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers.
It is clear from the context that the information was "noted" and not accorded great weight in the findings. Moreover, the Hearing Officer's inclusion of the information was not erroneous. Thus, there is an insufficient basis to grant the exception.
PETITIONERS/INTERVENORS' EXCEPTION #12 is DENIED.
Exception #13. Petitioners/Intervenors take exception to the findings of fact contained in paragraphs 37-54 of the Recommended Order, as follows:
The Hearing Officer failed to consider or give any ruling with respect to the proposed findings of fact set forth at paragraphs 9-28 and the conclusions of law set forth at paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed Recommended Order. indeed, the Hearing Officer utterly failed to even mention the Wet Prairies and their associated endangered and threatened species.
As to the proposed findings of fact included in paragraphs 9-28 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did so rule, "[paragraphs] 7-34. Partially accepted in findings of fact 10-15 and 37- 54." [RO page 38.]
As to paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did not make explicit rulings. The subject paragraphs were conclusions of law, which the Hearing Officer is not required to address. In pertinent part, section 120.59(2), Florida Statutes, provides, "If . . a party submitted proposed findings of fact . . . in connection with the proceeding, the order must include a ruling upon each proposed finding . ." It was thus within the sound discretion of the hearing officer to rule only upon the Petitioners/Intervenors' findings of fact.
PETITIONERS/INTERVENORS' EXCEPTION #13 is DENIED.
Exception #14. Petitioners/Intervenors take exception to the Hearing Officer's finding in paragraph 40 of the Recommended Order that states, "The plan contains extensive provisions designed to implement the Wetlands FLUM (Future Land Use Map) and provide significant protection of wetlands and the natural resource functions of wetlands." The Petitioners/Intervenors assert that no evidence was introduced to support this finding.
The finding is based upon competent, substantial evidence, and therefore the exception cannot be granted. [Joint Exhibits 3 and 4, Plan Policies 11.A.4.5 (fig. 7-30); 11.B.3.3; 11.A.1.8.a.b.; 11.A.1.8.c.; 11.A.1.7; 11.A.4.3;
11.B.3.3; 11.A.2.1; 11.B.3.1.; 11.B.3.6; 11.A.1.4; and 11.A.1.8.] PETITIONERS/INTERVENORS' EXCEPTION #14 is DENIED.
Exception #15. The basis for this exception is the finding of fact in paragraph
49 of the Recommended Order wherein it is found that the Santa Rosa County Comprehensive Plan "grants only very limited development rights in the Garcon Peninsula region, while also providing significant protections for natural resources in that area." Petitioners/Intervenors assert that the evidence refutes this finding.
The finding is based on competent, substantial evidence in the record. [Joint Exhibits 3 and 4.]
PETITIONERS/INTERVENORS' EXCEPTION #15 is DENIED.
Exception #16 and #17. In Exceptions #16 and #17, Petitioners/Intervenors take exception to paragraph 50 of the Recommended Order. In that paragraph, the Hearing Officer finds that, short of public acquisition, "no other reasonable method by which this area can be comprehensively protected and preserved as an intact ecological unit was presented." The Hearing officer further finds, "Requiring the County to reduce densities to the point where a moratorium on development in the area is created would create inverse condemnation . .
Petitioners/Intervenors state that the evidence clearly refutes these findings, that evidence was presented that one dwelling unit per 40 acres was appropriate for the Garcon peninsula, and that designations of up to four units per acre and commercial development would completely destroy the unique ecology of Garcon peninsula. Further, the Petitioners/Intervenors assert that the issue of inverse condemnation was not supported by competent evidence introduced, and that densities of less than four dwelling units per acre can be implemented without creating an "inverse condemnation" situation.
As to the reasonableness of the preservation effort, the Agency has reviewed the testimony as to that point, and concludes that the finding is within the allowable inferences from the evidence presented, and within the permissible prerogatives of the Hearing Officer. [Dorman (Vol. III), page 13.] The inverse condemnation finding is rejected as being legally incorrect, but this rejection is irrelevant as to the result because it is cumulative in nature.
PETITIONERS/INTERVENORS" EXCEPTIONS #16 and #17 are DENIED.
Exception #18. This exception is directed to the finding of fact in paragraph
51 which states that "the great majority of undeveloped areas on the Garcon peninsula currently fall within the wetlands permitting jurisdiction of DEP [Department of Environmental protection] and the federal government. As a consequence, permits for development will be difficult to obtain at best." Petitioners/Intervenors aver that there was no evidence introduced to support this finding.
To the contrary, however, the finding is adequately supported by competent, substantial evidence. [Edmisten (Vol. III), pages 90-91.]
PETITIONERS/INTERVENORS' EXCEPTION #18 is DENIED.
Exception #19. In Exception #19, Petitioners/Intervenors take exception to the finding of fact in paragraph 52 of the Recommended Order, in which it is stated that the Petitioners/Intervenors "failed to prove to the exclusion of fair debate that the plan inappropriately treats wetlands and wildlife habitat on the Garcon peninsula in light of chapter 163 requirements."
This is a permissible inference from the evidence presented, both from testimony adduced at hearing, and from the Santa Rosa County Comprehensive Plan itself.
PETITIONERS/INTERVENORS' EXCEPTION #19 is DENIED.
Exception #20. This exception takes issue with the findings of fact of paragraphs 55-63 of the Recommended Order because the Hearing Officer "failed to consider or give any ruling" on the proposed conclusions of law in the Petitioners/Intervenors' proposed recommended order at paragraphs 142 and 143.
The Hearing Officer is not required to do so for the reasons more specifically set forth in disposing of Exception #13, above.
PETITIONERS/INTERVENORS' EXCEPTION #20 is DENIED.
Exception #21. In Exception #21, Petitioners/Intervenors take exception to the findings of fact of paragraphs 64-70 of the Recommended Order in that the Hearing Officer "failed to consider or give any ruling" on Petitioners/Intervenors' proposed findings of fact at paragraphs 41 and 54-56 of their proposed recommended order, as well as their conclusions of law at paragraphs 112-118 and 121-126 of the same.
As to the findings of fact, the Hearing Officer made such rulings, "[paragraphs] 35-56. Partially accepted in findings of fact 16-20 and 64-70." [RO page 38.] As to the conclusions of law, that issue has been addressed above in disposing of Exception #13, as also applied in disposing of Exception #20.
PETITIONERS/INTERVENORS' EXCEPTION #21 is DENIED.
Exception #22. Petitioners/Intervenors ground this exception on the failure of evidence to support the finding of fact, in paragraph 64 of the Recommended Order, that the Santa Rosa County Comprehensive Plan requires "restoration of preexisting impacts of altered dunes . .
The finding is based upon competent, substantial evidence, and therefore the exception must be denied. [Joint Exhibits 3 and 4.]
PETITIONERS/INTERVENORS' EXCEPTION #22 is DENIED.
Exception #23. Petitioners/Intervenors take exception to the finding of fact in paragraph 69 for the following reasons:
The Hearing Officer found that the dune system was protected because the County encourages dune walkovers, sand fences, and other similar methods. The evidence introduced at the administrative hearing clearly refutes this finding. Without a mandatory program of providing such methods to protect the dune system from pedestrian traffic, the plan's alleged protection is illusory.
This finding is based upon competent, substantial evidence of record. [Joint Exhibits 3 and 4; Plan Policies 7.A.6.3 and 11.A.1.3.]
PETITIONERS/INTERVENORS' EXCEPTION #23 is DENIED.
Exception #24. Petitioners/Intervenors base this exception on the finding of fact in paragraph 70 of the Recommended Order wherein the Petitioners/Intervenors assert that the Hearing Officer finds that the Petitioners/Intervenors failed, in the words of the filed exception:
"to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan" does not fulfill the Chapter 163 and Rule 9J-5 requirements for protection of the Navarre Beach dune system. The testimony of Dr. Stone clearly refutes this finding.
In point of fact, that is not an appropriate paraphrase of the wording of the finding of fact in paragraph 70. The finding of fact, verbatim, is as follows:
[P]etitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not contain policies which are designed to prevent individual and cumulative impacts of development on beach and dune systems.
The finding is a permissible conclusion from the evidence adduced at the hearing, and is based upon competent, substantial evidence. [Joint Exhibits 3 and 4.]
PETITIONERS/INTERVENORS' EXCEPTION #24 is DENIED.
Exception #25. Petitioners/Intervenors take exception to the findings of paragraphs 74-76 of the Recommended Order based upon the failure of the Hearing Officer to consider or rule on conclusions of law contained in paragraphs 128-
132 of the Petitioners/Intervenor's proposed recommended order.
As specified in the disposition of Exception #13, above, and as carried forth in the disposition of Exceptions #20 and #21, above, the exception is denied.
PETITIONERS/INTERVENORS, EXCEPTION #25 is DENIED.
Exceptions #26, #27, and #28. These exceptions are directed to paragraph 75 of the Recommended Order. The findings of the paragraph that are the basis for the exception include the following:
The record does not reflect impacts, if any, the project may have to the environment, but does indicate that adequate mitigation is proposed. The County cannot legally adopt any plan provisions which are inconsistent with a state transportation project. . [P]etitioners have failed to show to the exclusion of fair debate that the plan's treatment of the proposed Santa Rosa Bay Bridge is inappropriate.
The findings are supported by competent, substantial evidence. [Edmisten (TR Vol. III); Joint Exhibit 2, Vol. I, pages 4-32 through 4-40.] Exceptions #27 and #28 are simply argument of the Petitioners/Intervenors' position in this proceeding and, as such, are insufficient to overturn findings supported by competent, substantial evidence.
PETITIONERS/INTERVENORS' EXCEPTIONS #26, #27, and #28 are DENIED.
Exception #29. This exception is directed to paragraphs 77-79 of the Recommended Order, alleged to be in error because the Hearing Officer failed to consider or rule on the conclusions of law in Petitioners/Intervenors' paragraphs 133-140 of their proposed recommended order.
As more specifically discussed in disposing of Exception #13, and as concluded in the denials of Exceptions #20, #21, and #25, the Hearing Officer is not required to make such rulings.
PETITIONERS/INTERVENORS' EXCEPTION #29 is DENIED.
Exceptions #30, #31 and #32. In these exceptions, Petitioners/Intervenors assert that there was no evidence introduced to support the findings, in paragraph 77-79 of the Recommended Order, concerning beach access points.
In paragraph 77, Petitioners/Intervenors take exception to the finding that reads, "The plan contains a number of provisions designed to ensure the continued availability of beach access. The future land use map indicates a number of beach access points shown on the map as conservation/recreation." In support of this exception, Petitioners/Intervenors state, "Indeed, during cross examination of Ms. Miller by the County, counsel for the County attacked Ms.
Miller for stating that the beach access points were identified on the Navarre Beach Future Land Use Map." In response, Respondent County and Petitioner/Respondent Department state:
The Petitioners' own witness, Yvonne Miller, testified that beach access points were indicated on the FLUM. [Citation omitted.] The fact that counsel for the County obtained clarification from Ms. Miller concerning her understanding of how access points were identified on the map is irrelevant to the validity of this finding of fact, and is not a basis for overturning same.
As to paragraph 78, Petitioners/Intervenors take exception to the finding that reads that "petitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not include appropriate objectives and policies concerning public access to the beach." In response, Respondent County and Petitioner/Respondent Department state, "The plan support documents include extensive data and analysis concerning public access to beaches." With respect to paragraph 79, Petitioners/Intervenors take exception to the finding that the Future Land Use Map includes many public access points.
The Agency has reviewed the testimony adduced at hearing regarding beach access points [Miller (TR Vol. 1), pages 150- 169]. The Hearing Officer's conclusions drawn from the testimonial evidence are within the allowable range of inferences. Based upon the record testimony, the findings of fact in paragraphs 77-79 to which exceptions are taken is based upon competent, substantial evidence in the record. [Miller (TR Vol. 1), pages 150-169; Joint Exhibit 2, Vol. II, pages 7-17 through 7-19; Joint Exhibit 7.]
PETITIONERS/INTERVENORS' EXCEPTIONS #30, #31, and #32 are DENIED.
EXCEPTIONS TO CONCLUSIONS OF LAW
Exception #33. Petitioners/Intervenors take exception to the conclusion of law in paragraph 87 of the Recommended Order wherein the Hearing Officer concluded that the petitions challenging the plan must fail. Petitioners/Intervenors assert that they have met their burden of proof, and their petition must be granted.
The Hearing Officer found that the Petitioners/Intervenors failed to meet their burden of proof. The conclusion of law ultimately was based upon the Hearing Officer's findings of fact in this case. Factual issues susceptible of ordinary methods of proof are the prerogative of the hearing officer. Heifetz
v. Department 6f Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). It is for the hearing officer to consider the evidence presented, resolve conflicts, judge credibility of witness, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. Id.,
475 So.2d at 1281. In this case, the Hearing Officer did so, and his findings of fact did not support the position of the Petitioners/Intervenors. The conclusion of law was the logical result of the Hearing Officer's permissible rulings on the findings of fact.
PETITIONERS/INTERVENORS' EXCEPTION #33 is DENIED.
Exception #34. Petitioners/Intervenors take exception to the conclusion of law in paragraph 90 of the Recommended Order wherein the Hearing Officer recommends that the Department of Community Affairs enter the final order in this cause, finding the Santa Rosa County Comprehensive Plan in compliance.
Petitioners/Intervenors assert that both the Department of Community Affairs and the Administration Commission should enter a final order finding the plan to be not in compliance.
For the reasons set out in disposing of Petitioners/Intervenors' Exceptions #1 and #2, above, the Administration Commission is not the entity to whom the Recommended Order in this cause should be directed. The Department of Community Affairs is the appropriate Agency to enter the final order in this cause.
As to the issue of compliance, the Department found the plan, as amended, to be in compliance; the Hearing Officer heard evidence and considered the issues, and found the plan, as amended, to be in compliance. The conclusion is the logical and ultimate result of the findings of fact in this case, which were based upon competent, substantial evidence. The Petitioners/Intervenors have not borne their burden of proving that the plan, as amended by remedial amendments, is not in compliance.
PETITIONERS/INTERVENORS' EXCEPTION #34 is DENIED.
WHEREFORE, the Department of Community Affairs adopts the Recommended Order of the Hearing Officer, and issues this Final Order determining that the Santa Rosa County Comprehensive Plan, as amended, is in compliance.
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.
DONE and ORDERED this 17th day of August, 1994, in Tallahassee, Florida.
Linda Looms Shelley Secretary
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
COPIES FURNISHED:
Donald R. Alexander Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee parkway
Tallahassee, Florida 32399-1550
Dan R. Tengle, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2199
Stephanie M. Callahan, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2199
David A. Theriaque, Esquire Robert C. Apgar, Esquire
Apgar, Pelham, Pfeiffer & Theriaque 909 East park Avenue
Tallahassee, Florida 32301
Kenneth G. Oertel, Esquire Scott Shirley, Esquire
Oertel, Hoffman, Fernandez & Cole, P.A.
P.O. Box 6507
Tallahassee, Florida 32314-6507
Thomas V. Dannheisser, County attorney Santa Rosa County Courthouse, Room 106 Milton, Florida 32570
John M. Harold, Esquire J Dan Gilmore, Esquire
4400 Bayou Boulevard, suite 45
Pensacola, Florida 32503
Robert Carl 9277 Deer Lane
Navarre, Florida 32566
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
SANTA ROSA COUNTY, FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 93-659
DOAH CASE NO. 90-7706GM
ADMINISTRATION COMMISSION, DIVISION OF ADMINISTRATIVE HEARINGS, DON W. DAVIS, in
his capacity as Hearing Officer far the Division of Administrative Hearings; and DEPARTMENT OF COMMUNITY AFFAIRS,
Appellees.
/ Opinion filed September 14, 1994.
An appeal from the circuit court for Leon County L. Ralph Smith, Judge.
Kenneth G. Oertel of Oertel, Hoffman, Fernandez & Cole, P.A., Tallahassee, and Thomas V. Dannheisser, County Attorney, Santa Rosa County, Milton, for Appellant.
Stephanie M. Callahan, Assistant General Counsel and Suzanne H. Schmith, Certified Legal Intern, Department of Community Affairs, Tallahassee, for Appellees.
Richard Grosso, Tallahassee, for Amicus 1000 Friends of Florida.
PER CURIAM.
Santa Rosa County appeals from a summary judgment in a suit for declaratory and injunctive relief against the Department of Community Affairs (DCA), the Division of Administrative Hearings (DOAH), and Don W. Davis in his capacity as hearing officer for DOAH. The County's suit challenged the constitutionality of certain comprehensive planning statutes found in the Growth Management Act, Part II of Chapter 163, Florida Statutes, and rules applied by the Department of Community Affairs to implement the Act. We affirm in part, reverse in part, and certify a question of great public importance to the Florida Supreme Court.
The County, pursuant to section 163.3161, submitted a proposed comprehensive plan to the Department far written comment on April 2, 1990. DCA provided the County with its objections, recommendations and comments regarding the County's comprehensive plan. Subsequently, the County adopted its comprehensive plan by ordinance. DCA issued its "Statement of Intent to Find the Comprehensive Plan Not in Compliance" with Florida Administrative Code Rule 9J-5, and Chapter 163, Florida Statutes. DCA later filed a petition with DOAH for a determination that the County's comprehensive plan did not comply with Chapter 163. The Department alleged: (1) the County's comprehensive plan failed to discourage urban sprawl as required by Rule 9J-5006(3)(b)7 and 9J-
(2)(b)3, and was inconsistent with other requirements of Ruble 9J- 5.006(3)(b); (2) the coastal element of the County's plan was inconsistent with section 163.3177(6)(g) and Rule 9J 5.012; and (3) the plan was inconsistent with several provisions of the West Florida Regional Policy Plan, In violation of sections 163.3177(10)(a) and 163.3184(1)(b)
Almost a year later, the County filed a Complaint for Declaratory and Injunctive Relief in Santa Rosa County Circuit Court seeking to have a declaration as to the constitutionality of the statutes and rules being applied to the County in the administrative comprehensive plan case. The lawsuit was later moved to circuit court in Leon County. The Complaint raised the following issues as grounds for declaratory relief: (1) the validity and constitutionality of several provisions of Florida Administrative Code Rule 9J- 5, which require that local government comprehensive plans contain provisions which discourage urban Sprawl and achieve other land use goals; (2) the constitutionality of provisions of section 163.3184, which authorize the Administration Commission to withhold legislative appropriations to the County and to direct State agencies not to undertake certain infrastructure activities in the County and which allow DNR and the Board of Trustees of the Internal Improvement Trust Fund to withhold permit and consent of use approval if it is determined that the comprehensive plan is inconsistent with the coastal element requirements of Rule 9J-5; (3) the validity and constitutionality of Rule 9J-5 and sections 163.3184 and 163.3177 that require the comprehensive plans be consistent with Regional Policy Plans; and (4) the validity of parts of Rule 9J-
which set out requirements for what a comprehensive plan must contain in its coastal element.
DCA filed motions to dismiss based on the County's failure to exhaust available administrative remedies and the County's lack of standing to file the action. Circuit Judge Reynolds denied both motions. The case was assigned from Judge Reynolds to Judge Smith.
In June of 1992, the parties, in the context of the pending DOAH action, signed a stipulated Settlement Agreement. The agreement provided in part:
18. Adoption or Approval of Remedial Plan Amendments. Within 60 days after receipt of the Department's objections, recommendations and comments, the local government shall consider for adoption all remedial plan amendments and a transmittal letter to the Department
as provided by law. The letter shall describe the remedial action adopted for each part of the plan amended, including references to specific portions and pages.
20. Review of Remedial Amendments and Notice of Intent. Within 45 days after receipt of the adopted remedial plan amendments and support documents, the Department shall issue a notice of intent pursuant to Section 163.3184, Florida Statutes, for the adopted amendments in accordance with this agreement....
b. Not in Compliance: If the remedial actions are not adopted, or if they do not satisfy this agreement, the Department shall issue a notice of intent to find the plan amendments not in compliance and shall forward the notice to DOAH for a hearing as provided in Subsection 163.2184(10), the Florida Statutes, and may request that the matter be consolidated with the pending proceeding for a single, final hearing. The parties hereby stipulate to that consolidation and to the setting of a single final hearing if the Department so requests.
In September 1992, DCA filed a Motion for Summary Judgment in the circuit court action, alleging among other things settlement of the administrative litigation concerning compliance of the comprehensive plan and that the civil suit was thus moot, as Santa Rosa now had no present need for a declaratory judgment The court granted the motion. The summary judgment order read in part:
On June 24, 1992, a settlement agreement was entered into between the County and the DCA, which resolved the disputes between the parties arising out of or related to the comprehensive plan adopted by the County (Settlement Agreement, Part I, paragraph 9, page 3). There is no genuine issue of material fact regarding the validity of such settlement agreement, nor the non-existence of any dispute as alleged in the complaint, which was the predicate for
this action.
The constitutionality of a statute can only be challenged in a declaratory judgment action when there is "an actual, present and practical need for the declaration (citation omitted)
There must be a bona fide need for a declaratory judgment based on present, ascertainable facts, or the Court has no jurisdiction to render such relief. (citation omitted)
It is, therefore, ordered and adjudged that Summary Judgment be and the same is hereby entered in favor of the Defendants, who shall go hence without day, and the Plaintiff shall take nothing by this action.
The County Subsequently filed a motion for rehearing which was denied. In the order denying rehearing, the court noted that Santa Rosa alleges that it still needs a declaration because it will have future problems complying with Chapter 163 and Rule 9J-5 The court stated, "[t]his Court lacks jurisdiction to entertain hypothetical disputes- which may or may not occur in the future nor does this Court have jurisdiction to give advisory opinions." Although the summary judgment was based on mootness, the issue of standing reemerged in the motion for rehearing. In the order denying rehearing, Judge Smith explained:
Initially, this Court was concerned as to the propriety of this cause even being considered under the declaratory judgment act. There was a close question as to whether Santa Rosa County, as a political subdivision, had standing to offensively challenge the constitutionality of certain statutes and rules. Department of Education v. Gerald Lewis, 416 So.2d 455 (Fla.
1982). The Court concluded that Santa Rosa County's tenuous standing was predicated on its present and ongoing dispute with DCA, in which the administrative proceeding was then pending before Don Davis.
The Settlement Agreement resolved the dispute between the parties as to the particular facts alleged in the Complaint. This Court granted Summary Judgment on the grounds that the requested declaration no longer presented an actual controversy as to the state of facts nor was there a bona fide, present need for the declaration for the reason that Santa
Rosa County was no longer subject to sanctions.
We agree with the County that the issue is not moot; however, we affirm the summary judgment based on the County's lack of standing.
Mootness
The entry of a settlement agreement between the County and DCA does not moot the issues presented for declaratory judgment. The settlement agreement, as indicated in the above quoted portions of paragraph 18 and 20B, reached tentative terms on settlement which require the County to enact amendments to its plan in order for DCA to find the plan "in compliance" If the amendments do not satisfy the agreement, DCA may request the matter be consolidated with the pending proceeding for a single, final hearing. Either party can request a final hearing under paragraph 14 in the event of breach of the agreement or if it becomes apparent that any party is not proceeding in good faith. DCA has since accepted the County's amendments and has joined with the County to defend the amendments against intervenors; however, the amendments may still be rejected by the Administration Commission and found "not in compliance." 163.3164(1); 163.3184, Fla. Stat.
Even if the settlement agreement is determined to be final, the issue is still not moot because of the ongoing nature of growth management and comprehensive planning. Sections 163.3161(6), 163.3191(1) and 163.3194(1)(a), Florida Statutes, demonstrate the ongoing nature of the Growth Management Act. Section 163.3161(6) states:
It is the intent of this act that the activities of units of local government in the preparation and adoption of comprehensive plans, or elements or portions therefor, shall be conducted in conformity with the provisions of this act.
Section 163.3191, which is titled "Evaluation and appraisal of comprehensive plan," at subsection (1) provides:
The planning program shall be a continuous and ongoing process The local planning agency shall prepare periodic reports on the comprehensive plan, which shall be sent to the governing body and to the state land planning agency at least once every five years after the adoption of the comprehensive plan.... It is the intent of this act that adopted comprehensive plans be periodically updated through the evaluation and appraisal report.
Section 163.3194 contains a provision on the legal status of a comprehensive plan. After a plan is adopted in conformity with Chapter 163, "all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted." 163.3194(1)(a), Fla. Stat.
The purpose of declaratory relief is "to afford relief from insecurity and uncertainty with regard to rights, status, and other equitable or legal remedies," and therefore the declaratory judgment statute is to be construed liberally. 86.101, Fla. Stat. (1989); Chiles v. Children A, B, C, D, E and F,
589 So. 2d 260, 263 (Fla. 1991); accord Overman v. State Bd. of Control, 62 So. 2d 696 (Fla. 1952). To entertain a declaratory judgment action, however, there must be "a bona fide need for such a declaration based on present, ascertainable facts or the court lacks jurisdiction to render declaratory relief." Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991). Santa Rosa has properly stated a cause of action for declaratory relief under these standards.
Santa Rosa will continue to have to comply with Chapter 163 and Rule 9J-5 in executing the Comprehensive Plan and in all Plan amendment proceedings.
Specific provisions will keep the County in a position of having to comply with the law or risk losing vital revenue. Compliance may be made a predicate for "state agencies....to provide funds to increase the capacity of roads, bridges, or water and sewer systems....163.3184(11)(a), Fla. Stat. Noncompliance of a future plan amendment places at risk participation in several state programs that are financially beneficial to appellant Id.
The County's rights, immunities, status and privileges are placed in doubt by having to comply with the comprehensive planning requirements. All future development orders and land development regulations issued by the County must be consistent with the comprehensive plan, and the County must follow a statutorily prescribed procedure to evaluate consistency. 163.3194, Fla. Stat. The County must review existing regulations, and, within one year after submission of its revised comprehensive plan for review, must adopt or amend land development regulations that are consistent with and implement the plan. 163.3202(1), Fla. Stat.
The settlement agreement did not, then, render the action moot. The issue of the Constitutionality of portions of the Growth Management Act and Rule 9J-5 raises an ongoing concern regarding the authority of local governments and involves widespread public interest. A case is not moot for purposes of jurisdiction if the law being challenged will have a recurring effect or if the problem leading to the case would be a recurring one. Nichols v. Nichols, 519 So.2d 620, n.1 (Fla. 1988); Shelton v. Reeder, 121 So.2d 145 (Fla. 1960); Rosenhouse v. 1950 Spring Term Grand Jury, 56 So.2d 445 (Fla. 1952); Breen v.
Arbomar Condominium Ass'n, 501 So.2d 697 (Fla. 2d DCA 1987). By way of analogy, an appellate court does not lose jurisdiction of a cause even though the matter in controversy has become moot as to one or more of the litigants in cases involving wide public interest or where such matters involve the operation of essential government functions, the duties and authority of public officials in the administration of the law, or the disbursement of public funds. Chiles v.
Children A, B, C, D, E, and F, 589 So. 2d at 263; Walker v. Pendarvis, 132 So.2d
186 (Fla. 1961); Ervin v. Capital Weekly Post, Inc., 97 So.2d 464, 466 (Fla. 1957). Santa Rosa's declaratory judgment action evokes wide public interest because the challenged statutes and rules apply to every county in Florida and affect the duty, power and authority of local governments to plan for and manage their own growth. The issue, therefore, is not moot regardless of the settlement agreement.
Standing
Even though the issues involved are not moot, the summary judgment must be affirmed because Santa Rosa County lacks standing to challenge portions of Chapter 163 and Rule 9J-5 The County has shown neither an exemption from the rule that public officers may not bring such challenges, nor personal injury to its officers resulting from enforcement of those rules. See Dep't of Revenue v. Markham, 396 So.2d 1120, 1121 (Fla. 1981)("courts have developed special rules concerning the standing of governmental officials to bring a declaratory judgment action questioning a law those officials are duty-bound to apply....Disagreement with a constitutional or statutory duty, or the means by which it is to be carried out, does not create a justiciable controversy or provide an occasion to give an advisory judicial opinion") . Legislation which affects the duties of state officers and agencies is presumed valid, and such parties do not have standing to assert otherwise. Id.; Graham v. Swift, 480 So.2d 124 (Fla. 3d DCA 1985).
Exceptions to this rule exist where "the objecting party can show that he will be injured in his person, property or other material right by virtue of the statute in question," Green v. City of Pensacola, 108 So.2d 897, 900 (Fla. 1st DCA 1959), aff'd, 126 So.2d 566 (Fla. 1961), or where the law requires an expenditure of public funds. Branca v. City of Miramar, 634 So.2d 604 (Fla.
1994)(City had standing to attack the constitutionality of its own ordinance where ordinance required expenditure of public funds); Kaulakis v. Boyd, 138 So.2d 505 (Fla. 1962)(County Commissioners had the right and the duty to
challenge the validity of a section of home rule charter subjecting the county to liability in tort action). Santa Rosa County falls within neither of these exceptions.
The County qua county is subject to the prohibition against bringing this action without demonstrating an exception. See Weaver v. Heidtman, 245 So.2d 295, 296 (Fla. 1st DCA 1971)("The respective counties of this State do not possess any indicia of sovereignty; they are creatures of the legislature created under Art. VIII, Sec. 1, of the State Constitution, F.S.A., and accordingly are subject to the legislative prerogatives in the conduct of their affairs"); Art. VIII, 1(f), Fla. Const. (Santa Rosa County as a political subdivision of the state has "such power of self-government as is provided by general or special law" and "may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law").
The County argues that this case falls within the delineated exceptions because an overriding public interest concerning the protection of public funds is involved. However, the statutory and rule proyisions in question do not specify any expenditures of public funds other than the ordinary cost of the County doing business, i.e., complying with the growth management laws of the state and preparing a local comprehensive plan. While there are certain administrative costs associated with the preparation and approval of a local comprehensive plan, the Act does not mandate the gross expenditures of local government funds in the same manner as the cases on which the County relies.
Arnold v. Shumert, 217 So. 2d 116 (F1a) 1968)(county questioned the constitutionality of a law which required county to waive sovereign immunity and therefore purchase liability insurance); Green v. City of Pensacola, supra (comptroller entitled to question constitutionality of special act which purports to exempt the City of Pensacola from payment of gross receipts tax as required by general law).
Santa Rosa's argument concerning expenditure of public funds turns Specifically upon its contention that chapter 163 and Rule 9J-5 require the County to expend great sums of money in formulating and adopting a comprehensive land use plan. Santa Rosa also notes its anticipated expenses to pay consultants, hold public hearings, and take other steps as called for by law.
Finally, Santa Rosa points to its potential loss of legislative appropriations should the Administration Commission find the plan, or subsequent amendments, not in compliance with the statute and rule. These arguments have not fallen upon deaf ears. It is, however, our task to apply existing law. Underlying many of the County's contentions here is the implication that the Growth Management Act, by its terms, and Specifically by its enforcement provisions, places local governments in an adversary position with the state. Our review of the Act confirms that the state holds a powerful stick which may be utilized to persuade local governments to engage in comprehensive planning of a mode acceptable to the state planning agency. Undoubtedly, the Growth Management Act will, in some cases, add to the cost of local governance. Our review of the case law, however, indicates that such increased cost of governance, even to fund actions that are not necessarily desired by the majority of voters within the jurisdiction of a local government such as Santa Rosa County, does not fit within an exception to the general rule prohibiting public officers and agencies from challenging a law they are bound to apply.
Recognizing the impact of Florida's Growth Management Act upon county governments and the state, we certify to the supreme court, as a question of great public importance the following:
DOES A COUNTY HAVE STANDING TO CHALLENGE BY A DECLARATORY ACTION THE CONSTITUTIONALITY OF A STATUTE OR RULE WHICH INDIRECTLY REQUIRES THE COUNTY TO EXPEND PUBLIC FUNDS IN ORDER TO COMPLY WITH THE MANDATES OF SUCH STATUTE OR RULE, AND FURTHER PROVIDES FOR A POTENTIAL LOSS OF REVENUE TO THE COUNTY IN THE EVENT OF NONCOMPLIANCE?
AFFIRMED in part, REVERSED in part and QUESTION CERTIFIED.
JOANOS and KAHN, JJ., CONCUR; ERVIN, J., CONCURS AND DISSENTS W/OPINION.
ERVIN, J., concurring and dissenting.
Because I am in complete agreement with that portion of the majority's opinion recognizing that Santa Rosa County has no standing to sue the state, I see no need to reach the issue regarding whether the parties' settlement of the administrative litigation rendered the civil suit moot. Nor do I perceive any necessity for certifying any question of great public importance to the Florida Supreme Court.
The majority sets forth impressive authority which clearly establishes that the county has failed to show an exemption from the long-standing rule precluding it from bringing its challenge against the state. There is certainly nothing remarkable or unique in the application of this rule to a county, an arm of the state, forbidding it to sue its head. Consequently, this is simply not the type of case which the Florida Supreme Court would ordinarily exercise its discretionary jurisdiction to consider under the ambit of great public importance. Cf. Stein v. Darby, 134 So.2d 232 (Fla. 1961)(case was not fraught with great public interest, because it involved simply a determination that a statute was unconstitutional as applied to its particular facts).
I would therefore affirm the summary judgment without reaching the issue of mootness, and I dissent from that portion of the opinion certifying the question as one of great public importance to the Florida Supreme Court.
| Issue Date | Proceedings |
|---|---|
| Oct. 26, 1994 | Opinion filed. |
| Aug. 18, 1994 | Final Order filed. |
| Jul. 12, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 02/22-24/94. |
| Jul. 05, 1994 | Petitioners' Response in Opposition to Santa Rosa County's Motion to Assess Costs and Attorneys' Fees filed. |
| Jul. 05, 1994 | Petitioners' Response in Opposition to Santa Rosa County's Motion to Strike filed. |
| Jun. 29, 1994 | Joint Response in Opposition filed. |
| Jun. 22, 1994 | Santa Rosa County's Motion to Assess Costs and Attorneys Fees; Motionto Strike w/Exhibit-A filed. |
| Jun. 21, 1994 | Petitioenrs/Intervenors' Motion to Strike Respondent's Joint ProposedRecommended Order filed. |
| Jun. 17, 1994 | Notice of Filing Petitioners/Intervenors' Proposed Recommended Order;Petitioners/Intervenors' Proposed Recommended Order filed. |
| Jun. 17, 1994 | Joint Proposed Recommended Order w/Exhibits A-C filed. |
| Jun. 17, 1994 | (Respondent) Motion for Official Recognition w/Exhibits A-D filed. |
| Jun. 13, 1994 | (Santa Rosa County) Response to Petitioner's Motion for Four-Day Extension of Time to File Proposed Recommended Order Until Friday June 17,1994 filed. |
| Jun. 13, 1994 | Petitioners Motion for Four Day Extension of Time to File Proposed Recommended Order Until Friday, June 17, 1994 filed. |
| Jun. 09, 1994 | Petitioners Motion for One-Day Extneison of Time To File Proposed Recommended Order filed. |
| May 23, 1994 | Joint Motion for Extension of Time filed. |
| May 13, 1994 | Petitioners/Intervenors' Motion for Extension of Time to File Proposed Order filed. |
| May 06, 1994 | Petitioners/Intervenors' Motion for Extension of Time to File Proposed Order filed. |
| Apr. 06, 1994 | Transcript w/cover ltr filed. |
| Apr. 05, 1994 | Transcript (Vols 2&3) filed. |
| Feb. 18, 1994 | Joint Prehearing Stipulation filed. |
| Feb. 10, 1994 | (Respondent) Amended Notice of Taking Deposition Duces Tecum filed. |
| Feb. 09, 1994 | Joint Motion for Extension of Time to File Pre-Hearing Stipulation w/(unsigned) Order on Joint Motion for Extension of Time to File Pre-Hearing Stipulation filed. |
| Feb. 08, 1994 | (Respodnent) Notice of Service of Supplemental Responses to Interrogatories filed. |
| Feb. 07, 1994 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Feb. 02, 1994 | Santa Rosa County's List of Expert Witnesses filed. |
| Feb. 01, 1994 | (Respondent) Response to Petitioners/Intervenors' Motion to Compel Discovery; Response to Motion for Protective Order and Notice of Withdrawal of Second Set of Interrogatories filed. |
| Feb. 01, 1994 | Order sent out. (Re: Motion to Compel Discovery Granted; Motion for Protective Order Granted) |
| Jan. 27, 1994 | Notice of Service of Department of Community Affairs' Answers to Intervenro's First Set of Interrogatories filed. |
| Jan. 25, 1994 | Petitioners/ Intervenors' Motion to Compel Discovery W/Exhibits A&B filed. |
| Jan. 25, 1994 | Petitioner/Intervenors' Motion for Protective Order w/Exhibits A&B filed. |
| Jan. 20, 1994 | Order Designating Location of Hearing sent out. (hearing set for 2/22-25/94; 10:00am; Milton) |
| Jan. 13, 1994 | (Santa Rosa County) Notice of Service of Interrogatories; Respodnent's SEcond Request for PRoduction of Documents to Linda L. Young, AmelieBlyth, and Diana Godwin filed. |
| Jan. 10, 1994 | (Petitioners/Intervenors) Notice to Court Regarding County's Letter of January 5., 1994 filed. |
| Jan. 07, 1994 | Order sent out. (hearing rescheduled for 2/22/94; Milton) |
| Jan. 06, 1994 | Letter to DRA from Kenneth G. Oertel (re: changing the begining date for hearing) filed. |
| Dec. 29, 1993 | (Respondent) Notice of Service of Responses to Interrogatories (file in 93-4980GM); Notice of Service of Responses to Interrogatories filed. |
| Dec. 22, 1993 | (Respondent) Objections to Interrogatories filed. |
| Dec. 22, 1993 | Notice of Service of Intervenor Linda Young's Answers to Respondent Santa Rosa County's First Interrogatories filed. |
| Dec. 22, 1993 | Notice of Service of Petitioner Linda Young's Answers to Respondent Santa Rosa County's First Interrogatories (filed in 93-4980GM); Notice of Service of Petitioner Amelie Blyth's Answrs to Respondent Santa Rosa County's First Interrogatories filed. |
| Dec. 22, 1993 | Notice of Service of Petitioner Diana Godwin's Answers to Respodnent Santa Rosa County's First Interrogatories (filed in 93-4980GM); Noticeof Service of Intervenor Diana Godwin's Answers to Respondent Santa Rosa County's First Int errogatories filed. |
| Dec. 22, 1993 | Notice of Service of Intervenor Amelie Blyth's Answrs to Respondent Santa Rosa County's First Interrogatories filed. |
| Dec. 20, 1993 | Order sent out. (Motion to Reconsider Order Compelling Discovery granted; Final Hearing Continued until Feb. 22-25, 1994) |
| Dec. 20, 1993 | (Respondent) Notice of Withdrawal of Motion filed. |
| Dec. 15, 1993 | Petitioners/Intervenors' Response to Response in Opposition to Motionfor Reconsideration of Order Compelling Response to Discovery By December 8, 1993 and Motion for Sanctions filed. |
| Dec. 15, 1993 | Notice of Telephonic Hearing (set for 4:00 today) filed. |
| Dec. 15, 1993 | Ltr. to CCA from R. Carl filed. |
| Dec. 14, 1993 | Response to Santa Rosa County's Motion for Disqualification as Counsel filed. |
| Dec. 14, 1993 | Affidavit of G. Steven Pfeiffer filed. |
| Dec. 14, 1993 | (DCA) Response to Motion for Disqualification of Counsel filed. |
| Dec. 14, 1993 | Petitioners/Intervenors' Motion for Leave to File Response One Day Late filed. |
| Dec. 10, 1993 | (Respondent) Response in Opposition to Motion for Reconsideration of Order Compelling Response to Discovery by December 8, 1993 and Motion for Sanctions filed. |
| Dec. 10, 1993 | (Respondent) in Opposition to Motion for Reconsideration of Order Denying Petitioners/Intervenors' Motion for Continuance filed. |
| Dec. 08, 1993 | Order sent out. (re: counter motion for reimbursement of attorney's fees & costs is denied) |
| Dec. 07, 1993 | (Petitioners/Intervenors) Motion for Reconsideration of Order DenyingPetitioners/Intervenors Motion for Continuance; Motion for Reconsideration of Order Compelling Response to Discovery by December 8, 1993 filed. |
| Dec. 03, 1993 | (Respodnent) Response to Counter Motion for Reimbursement of Attorney's Fees and Costs filed. |
| Dec. 03, 1993 | (Respondent) Notice Concerning Motion for Disqualification as Counselfiled. |
| Dec. 01, 1993 | Order sent out. (ruling on motions) |
| Nov. 29, 1993 | Santa Rosa County's Response in Opposition to Motions for Expedited Answers to Interrogatories filed. |
| Nov. 29, 1993 | (Respondent) Response in Oppostiion to Motion for Continuance filed. |
| Nov. 29, 1993 | (Respondent) Motion for Disqualification as Counsel filed. |
| Nov. 22, 1993 | (Intevenros) Notice of Service of Intervenors' First Set of Interrogatories to Respondent Santa Rosa County; Notice of Service of Intervenors' First Set of Interrogatories to Petitioner Department of Community Affairs filed. |
| Nov. 22, 1993 | Petitioners' Response to Santa Rosa County's Motion for Reimbursment of Fees and Costs And Counter-Motio for Reimbursement of Attorneys' Fees And Costs filed. |
| Nov. 22, 1993 | Intervenors' Motion for Expedited Answers to Intervenors' First Set of Interrogatories filed. |
| Nov. 22, 1993 | Joint Response to Motion to Compel Discovery filed. |
| Nov. 19, 1993 | Intervenrs' Motion for Continuance filed. |
| Nov. 19, 1993 | Notice of Appearance filed. (From David A. Theriaque) |
| Nov. 16, 1993 | (Respondent) Motion to Compel Discovery (3) filed. |
| Oct. 28, 1993 | Amended Notice of Hearing sent out. (hearing set for 1/18-21/94; 10:00am; Milton) |
| Oct. 22, 1993 | (Respondent) Notice of Continuation of Deposition Duces Tecum; Response Concerning Rescheduling of Final Administrative Hearing filed. |
| Oct. 18, 1993 | Response to HO's Ltr of October 4, 1993 filed. (From Robert Carl) |
| Oct. 18, 1993 | Letter to CCA from Amelie Blyth (re: statement) filed. |
| Oct. 12, 1993 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Oct. 11, 1993 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Oct. 06, 1993 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report by 10/22/93) |
| Oct. 04, 1993 | Order sent out. (Re: Motions to Dismiss Denied; Motion for Summary Recommended Order Denied; Motion to Determine Qualifications filed by Respondent Denied) |
| Sep. 30, 1993 | (Respondent) Response to Request for Continuance filed. |
| Sep. 30, 1993 | (Respondent) Motion for Reimbursement of Fees and Costs filed. |
| Sep. 29, 1993 | (Respondent) Response to Hearing Officer's Order filed. |
| Sep. 28, 1993 | Letter to A. Blyth from CCA sent out. |
| Sep. 27, 1993 | Petitioner's Response to Respondent's Motion for Summsary RecommnededOrder and to Dismiss filed. |
| Sep. 27, 1993 | Petitioner's Response to Respondent's Motion to Determine Qualififications First Request for Production of Documents filed. |
| Sep. 27, 1993 | Respondent Hearing Officer's Order; Response to Motion for Summary Recommended Order and Motion to Dismiss, Motion to Determine Qualififications, and Motion to Dismiss filed. |
| Sep. 17, 1993 | Order sent out. (Re: F. Dunham's Notice of Voluntary Dismissal) |
| Sep. 16, 1993 | Letter to CAC from Amelie Blyth (re: case number & costs for hearing)filed. |
| Sep. 15, 1993 | Notice of Withdrawal filed. (From Frances Dunham) |
| Sep. 14, 1993 | Motion for Summary Recommended Order and Motion to Dismiss filed. (From Kenneth G. Oertel) |
| Sep. 14, 1993 | Motion to Determine Qualifications filed. (From Kenneth G. Oertel) |
| Sep. 10, 1993 | Addendum to Joint Response to Prehearing Order filed. |
| Sep. 09, 1993 | Notice of Hearing sent out. (hearing set for 12/6-10/93) |
| Sep. 07, 1993 | Appellant's reply brief to answer brief of appellee Department of Community Affairs filed. |
| Sep. 07, 1993 | (Intervenor) Response to Prehearing Order filed. |
| Aug. 25, 1993 | Joint Response to Prehearing Order filed. |
| Aug. 13, 1993 | Letter from M. Chistopher Bryant to Don W. Davis filed. |
| Aug. 10, 1993 | Appendix to answer brief of appellee, State of Florida, Department ofCommunity Affairs filed. |
| Jul. 26, 1993 | Order sent out. |
| Jul. 26, 1993 | Order sent out. |
| Jul. 22, 1993 | Appellee Department of Community Affairs' response to order to show cause filed. |
| Jul. 16, 1993 | Order sent out. (Rulings on motions) |
| Jul. 15, 1993 | (Petitioner) Response to Motion for Time Extension filed. |
| Jul. 06, 1993 | (Intervenors) Motion for Extension of Time filed. |
| Jun. 23, 1993 | (Petitioner) Motion to Dismiss Formal Proceeding filed. |
| Jun. 21, 1993 | Second Request for Extension of time to file answer brief filed. |
| Jun. 03, 1993 | Motion for extension of time to file answer brief filed. |
| May 14, 1993 | Appellant, Santa Rosa County, Florida's Initial Brief filed. |
| Apr. 23, 1993 | Letter to CCA from Amelie Blyth (re: documents dated September 23, 1992) filed. |
| Apr. 19, 1993 | Order sent out. (Parties to file status report by 7-15-93) |
| Apr. 09, 1993 | (Respondent) Status Report filed. |
| Apr. 09, 1993 | (Respondent) Status Report filed. |
| Feb. 10, 1993 | Order sent out. (Parties to file status report by 4-9-93) |
| Feb. 03, 1993 | Order denying motion for rehearing(from L. Ralph Smith, Jr., Circuit Judge) filed. |
| Jan. 29, 1993 | (Petitioner) Status Report filed. |
| Jan. 29, 1993 | (Petitioner) Status Report filed. |
| Jan. 22, 1993 | Order sent out. (parties shall file status report by 1-29-93) |
| Jan. 11, 1993 | Motion to strike plaintiff's supplement to motion for rehearing filed. |
| Jan. 05, 1993 | Response in opposition to motion for rehearing of summary judgment filed. |
| Dec. 14, 1992 | Summary Judgment(Circuit Court-Judge Ralph Smith) filed. |
| Nov. 06, 1992 | Memorandum in Support of Santa Rosa County's Response to Motion for Summary Judgement. filed. |
| Oct. 28, 1992 | Memorandum of Law in Support of Department's Motion for Summary Judgment filed. |
| Sep. 14, 1992 | Order sent out. (8-13-92 attempt by motion /letter to set aside the abatement of the hearing on the grounds related to publication of the notice of public hearing associates with adoption of the compliance agreement is denied.) |
| Sep. 02, 1992 | Letter to DWD from R. Carl dated 8/13/92 (re: abeyance of case) & Cover Letter from R. Carl dated 8/31/92 filed. |
| Aug. 17, 1992 | (ltr form) Motion to Deny Previous Filed and Granted Motion Abating Further Proceedings filed. (From Robert Carl) |
| Aug. 10, 1992 | Order sent out. (Mr. Carl's motion is denied without prejudice to the movant's right to seek relief, if a violation of publication requirements is deemed to have occurred, from a court of competent jurisdiction) |
| Aug. 03, 1992 | Letter to DWD from Robert Carl (re: Motion to Deny) filed. |
| Jul. 27, 1992 | (DCA) Amended Certificate of Service & Cover Letter from A. Blyth filed. |
| Jul. 21, 1992 | Letter to DWD from Robert Carl (re: Santa Rosa County ltr to HO) filed. |
| Jul. 21, 1992 | Order sent out. (motion denied) |
| Jul. 15, 1992 | (ltr form) Response to Robert Carl's Ltr of July 1, 1992 w/attachmentfiled. (From Thomas V. Dannheisser) |
| Jul. 13, 1992 | Intervenor's Response in Opposition to Petitioner's Motion for Abatement of Proceedings filed. |
| Jul. 10, 1992 | Order of Abatement sent out. (Parties to file status report by 1-15-93. |
| Jul. 07, 1992 | Letter to DWD from Robert Carl (re: statement) filed. |
| Jul. 07, 1992 | Letter to DWD from Robert Carl (re: statement) filed. |
| Jun. 29, 1992 | (Petitioner) Amended Certificate of Service filed. |
| Jun. 25, 1992 | (Petitioner) Motion for Abatement of Proceedings and Notice of filingStipulated Settlement Agreement w/Stipulated Settlement Agreement filed. |
| Jun. 17, 1992 | (Petitioner) Response to Hearing Officer's Order filed. |
| Jun. 01, 1992 | Letter to DWD from Robert Carl (re: respondent changing the present status on the paving of roads in Santa Rosa County) filed. |
| May 20, 1992 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report by 7-2-92) |
| May 08, 1992 | CC Letter to Robert Carl from Ernie Padgett (re: response to ltr of April 17, 1992) filed. |
| Apr. 27, 1992 | Letter to DWD from Robert Carl (re: Response to ltr sent to Santa Rosa County Administrator April 6, 1992) filed. |
| Apr. 10, 1992 | CC Letter to Robert Carl from Ernie Padgett (re: response to ltr of March 22, 1992) filed. |
| Apr. 10, 1992 | Order Granting Further Continuance sent out. (case is continued until 6-2-92, parties shall advise the undersigned of status of case on orbefore 6-2-92) |
| Apr. 06, 1992 | (Petitioner) Status Report filed. |
| Mar. 25, 1992 | (corrected) Letter to DWD from Robert Carl (forwarded March 18th) filed. |
| Mar. 25, 1992 | Answer of Department of Community Affairs filed. |
| Mar. 20, 1992 | Letter to DWD from Robert Carl (re: Ltr sent to HO & all parties on February 19th) filed. |
| Feb. 13, 1992 | (ltr form) Response to Status Report filed. (From Robert Carl) |
| Feb. 13, 1992 | Motion for Rehearing(Michael P. Donaldson) filed. |
| Feb. 12, 1992 | Order Granting Further Continuance sent out. (Parties' status report due April 2, 1992). |
| Feb. 07, 1992 | (DCA) Status Report filed. |
| Jan. 29, 1992 | Notice of Hearing(Circuit Court 2 copies) filed. |
| Jan. 28, 1992 | Ltr. to DOAH from R. Carl re: attendance at hrg. filed. |
| Jan. 22, 1992 | Department of Community Affairs' First Motion to Dismiss for failure to state a cause of action filed. |
| Jan. 09, 1992 | Letter to H. Chiles from Assistant Director J. W. York. |
| Jan. 08, 1992 | Response to Order by Hearing Office Robert T. Benton, II, filed in the First DCA. |
| Jan. 08, 1992 | Golden Rule Insurance Company`s Response to Show Cause why this Appeal should not be Dismissed as Moot filed in the First DCA. |
| Jan. 08, 1992 | Notice of Service of Answers to Interrogatories of Santa Rosa County filed. |
| Jan. 07, 1992 | Order Granting Joint Motion for Continuance sent out. (Hearing cancelled; Parties' status report due Feb. 1, 1992). |
| Jan. 06, 1992 | Motion for Rehearing filed in the Supreme Court of Florida (case no. 78,279). |
| Jan. 06, 1992 | Request for Oral Argument filed in the Supreme Court of Florida. |
| Jan. 06, 1992 | 1st U.S. Districit Court of Appeal Order to Show Cause filed. |
| Dec. 24, 1991 | Joint Motion for Continuance filed. |
| Dec. 23, 1991 | Order Transferring Cause of Action to Leon County filed. |
| Dec. 17, 1991 | Memorandum ion Support of Motion for Preliminary Injunction filed in the First Judicial Circuit Court (91-1997-CA-01-OTH-A). |
| Dec. 17, 1991 | Response to Department`s Motion to Dismiss filed in the First Judicial Court. |
| Dec. 12, 1991 | Motion of Department of Community Affairs to Dismiss the Complaint for Declaratory and Injunctive Relief filed by Santa Rose County Based on Improper Venue filed in the 1st Judicial Circuit Court. |
| Dec. 11, 1991 | (Petitioner) Amended Notice of Taking Deposition Duces Tecum filed. |
| Dec. 10, 1991 | Ltr. to Harry Chiles from JWY forwarding copies of pleadings filed with DOAH sent out. |
| Dec. 09, 1991 | Motion for Protective Order and Notice of (motion) Hearing filed in the First Judicial Circuit. |
| Dec. 09, 1991 | (Respondent) Response to Request to Extend Dates of Hearing filed. |
| Dec. 09, 1991 | Order sent out. (regarding extension of time for hearing). |
| Dec. 04, 1991 | Notice of Appearance of counsel for Department of Community Affairs filed. |
| Dec. 04, 1991 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Dec. 04, 1991 | Notice of Taking Deposition Duces Tecum w/Subpoena Duces Tecum & Exhibit-A filed. |
| Dec. 04, 1991 | Notice of Hearing(First Judicial Circuit Court) filed. |
| Nov. 27, 1991 | (Petitioner) Request to Extend Dates of Administrative Hearing filed. |
| Nov. 25, 1991 | 1st DCA Order (Motion of C. Dickinson to appear pro hac vice o/b/o of Golden Rule Insurance Company granted) filed. |
| Nov. 25, 1991 | Subpoena Ad Testificandum w/Affdiavit of Service (3) filed. (From Robert Carl) |
| Nov. 20, 1991 | Letter to Thomas Dannheiser from Robert Carl (re: response to Interrogatory No. 6); Letter to Thomas Dannheiser from Robert Carl (re: addition information requested by the 1st set of Interrogatories) filed. |
| Nov. 19, 1991 | Subpoena Ad Testificandum filed. (From Robert Carl) |
| Nov. 18, 1991 | Notice of Service of Answers to Interrogatories of Santa Rosa County filed. |
| Nov. 01, 1991 | Second Notice of Taking Deposition Duces Tecum filed. (From Ken G. Oertel) |
| Oct. 31, 1991 | (Petitioner) Notice of Withdrawal of Motion to Strike and Partial Response to "First" Set of Interrogatories of Santa Rosa County filed. |
| Oct. 23, 1991 | Notice of Withdrawal of Interrogatories filed. (From Kenneth G. Oertel) |
| Oct. 22, 1991 | Order sent out. (RE: Intervention granted for The Home Builders Association of West Florida, Inc.) |
| Oct. 22, 1991 | (Request) for Subpoenas filed. (From Robert Carl) |
| Oct. 22, 1991 | Notice of Hearing filed. (From Stephanie Callahan) |
| Oct. 21, 1991 | Subpoena Duces Tecum filed. (From Ken g. Oertel) |
| Oct. 21, 1991 | (Petitioner) Motion For Protective Order filed. |
| Oct. 17, 1991 | Motion to Strike Santa Rosa County's First Set of Interrogatories to Petitioner, Department of Community Affairs filed. (From Stephanie M. Callahan) |
| Oct. 16, 1991 | (Respondent) Notice of Service of Interrogatories filed. |
| Oct. 09, 1991 | Home Builders Association of West Florida, Inc. Petition to Intervenefiled. |
| Oct. 08, 1991 | (Respondent) Notice of Service of Interrogatories (7); Request for Production of Documents (7) filed. |
| Oct. 04, 1991 | (Respondent) Amended Notice of Taking Deposition Duces Tecum filed. |
| Oct. 03, 1991 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Oct. 03, 1991 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Oct. 03, 1991 | (Respondent) Notice of Appearance filed. |
| Sep. 23, 1991 | Order Denying in Part The Motion to Amend Notice of Hearing and Requiring Further Response sent out. |
| Sep. 23, 1991 | Response to Motion to Amend Notice of Hearing filed. (From Thomas V. Dannheisser) |
| Sep. 17, 1991 | (Petitioner) Motion to Amend Notice of Hearing filed. (From StephanieM. Callahan) |
| Sep. 16, 1991 | (Respondent) Motion in Opposition to Petition to Intervene filed. |
| Sep. 13, 1991 | Amended Notice of Hearing sent out. (hearing set for Janurary 7-10, 1992: 10:00 am: Milton) |
| Sep. 06, 1991 | Notice of Hearing sent out. (hearing set for Jan. 7-10, 1992; 10:00am C.S.T; Milton). |
| Aug. 29, 1991 | Order sent out. (Re: Intervention for Diana Jarvis Godwin). |
| Aug. 07, 1991 | Petition to Intervene in Dtermination of Non-Compliance of Santa RosaCounty Comprehensive Plan filed. (From Diana Jarvis Godwin) |
| Aug. 05, 1991 | (Respondent) Notice of Answers to First Set of Interrogatories From Department of Community Affairs filed. (From Thomas V. Dannheisser) |
| Jul. 15, 1991 | Notice of Service of Answers to Interrogs. of Santa Rosa County filed. |
| Jul. 12, 1991 | Order Granting Petition to Intervene (for Robert Carl) sent out. |
| Jun. 19, 1991 | Petition to Intervene in Determination of Non-Compliance of Santa Rosa County Comprehensive Plan & cover ltr filed. (From Stephanie M. Callahan) |
| Jun. 10, 1991 | Order Granting Continuance sent out. (Hearing cancelled). |
| Jun. 07, 1991 | Answer to Request for Admissions filed. (From Thomas V. Dannheisser) |
| Jun. 06, 1991 | Joint Motion for Continuance filed. (From S. Callahan) |
| Jun. 04, 1991 | Motion in Opposition to Petition to Intervene filed. (From Thomas V. Dannheisser) |
| May 28, 1991 | Notice of Taking Deposition filed. (From T. V. Dannheisser) |
| May 13, 1991 | Notice of Service of Interrogatories to Department of Community Affairs filed. (From Thomas V. Dannheisser) |
| Apr. 16, 1991 | Notice of Service of Request for Admissions; Petitioner's First Request for Admissions filed. |
| Apr. 16, 1991 | Notice of Service of Interrogatories to Santa Rosa County; Departmentof Community Affairs First Set of Interrogatories to The Santa Rosa County filed. |
| Feb. 11, 1991 | Order Granting Petition to Intervene (for Amelie Blyth) |
| Feb. 06, 1991 | Second Notice of Hearing sent out. (hearing set for June 24-28, 1991: 9:30 am: Milton) |
| Feb. 06, 1991 | Order Granting Motion to Reschedule Hearing sent out. |
| Feb. 05, 1991 | Order Granting Petition to Intervene (for Linda L. Young) |
| Feb. 04, 1991 | Petitioner to Intervene in Determination of Non-Compliance of Santa Rosa County Comprehensive Plan & attachments filed. (From Amelie Blyth) |
| Jan. 24, 1991 | (Respondent) Motion to Reschedule Hearing filed. (From Thomas V. Dannheisser) |
| Jan. 23, 1991 | Petition For Leave to Intervene of Linda Young filed. (From Linda L. Young) |
| Jan. 22, 1991 | Order Granting Petition to Intervene (for Frances Dunham) |
| Jan. 14, 1991 | Petition to Intervene in Determination of NOn-Compliance of Santa Rosa County Comprehensive Plan filed. (from Frances Dunham) |
| Jan. 10, 1991 | Notice of Hearing sent out. (hearing set for April 11, 1991: 9:30 am: Milton) |
| Jan. 10, 1991 | Order Establishing Prehearing Procedure sent out. |
| Jan. 10, 1991 | (Petitioner) Response to Hearing Officer's Order filed. (From Stephanie M. Gehres) |
| Dec. 17, 1990 | Initial Order sent out. |
| Dec. 11, 1990 | PPF's sent out. |
| Dec. 05, 1990 | Petition of The Department of Community Affairs; Notice of Intent; Statement of Intent to Find Comprehensive Plan Not in Compliance filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 14, 1994 | Opinion | |
| Aug. 17, 1994 | Agency Final Order | |
| Jul. 12, 1994 | Recommended Order | Comprehensive plan sustained. Burden of proof under original and new proceedings discussed. See Final Order which modified Recommended Order. |
