david powellVs.scott shirley|Department of Community Affairs... -- eLawyers

Petitioner: SYLVAN ZEMEL, INDIVIDUALLY AND AS TRUSTEE, ET AL.
Respondent: LEE COUNTY AND DEPARTMENT OF COMMUNITY AFFAIRS
Judges: ROBERT E. MEALE
Agency: Department of Community Affairs
Locations: Tallahassee, Florida
Filed: Dec. 10, 1990
Status: Closed
Recommended Order on Wednesday, December 16, 1992.
Latest Update: Jun. 23, 1993
Summary: The issue in the case is whether amendments to the Lee County comprehensive plan are not in compliance for the reasons set forth in the amended petition of Petitioners.Plan amendments redesignating land as groundwater resource supported by data and analysis.

90-7793.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYLVAN ZEMEL, individually ) and as Trustee, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 90-7793GM

) LEE COUNTY and DEPARTMENT OF ) COMMUNITY AFFAIRS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Ft. Myers and, by unanimous agreement, Tallahassee, Florida, on January 13-17, 1992, and March 2-4, 1992, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioners: Elizabeth C. Bowman

David Powell

Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314

For Lee County: Kenneth G. Oertel

Scott Shirley

Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507

Gregory Hagen Timothy Jones

Assistant County Attorneys 2115 Second Street

Post Office Box 398

Fort Myers, Florida 33902-0398

For Department David Russ

of Community Michael Donaldson Affairs: Assistant General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-0410

STATEMENT OF THE ISSUE

The issue in the case is whether amendments to the Lee County comprehensive plan are not in compliance for the reasons set forth in the amended petition of Petitioners.

PRELIMINARY STATEMENT

On October 18, 1990, the Department of Community Affairs issued a notice of intent to find the subject plan amendments in compliance. On November 16, 1990, Petitioners filed a petition challenging the determination.

The issues in the case are as follows:

Whether the subject plan amendments are consistent with the criterion of plan provisions based on relevant and appropriate data, as required by Section 163.3177(8) and (10)(e), Florida Statutes, and Rule 9J- 5.005(2)(a), Florida Administrative Code.
Whether the data and analysis, if any, supporting the subject plan amendments are consistent with the criterion of data collected and applied in a professionally acceptable manner, as required by Section 163.3177(10)(e) and Rule 9J-5.005(2)(a).
Whether the data and analysis, if any, supporting the subject plan amendments are consistent with the criterion of the best available existing data, as required by Rule 9J-5.005(2)(c).
Whether the data and analysis, if any, supporting the subject plan amendments are consistent with the criterion that special studies forming part of the data and analysis use appropriate, clearly described methodologies and meet professionally acceptable standards, as required by Rule 9J-5.005(2)(c).
Whether the data and analysis, if any, supporting the subject plan amendments are consistent with the criterion of the submission of sufficient data and analysis to the Department of Community Affairs for the purpose of their review, as required by Rule 9J- 5.005(2)(d).
Whether the data and analysis, if any, supporting the subject plan amendments, as well as the adoption process, are consistent with the criterion that copies of all unadopted background data, studies, surveys, analyses, and inventory maps be available for public inspection during adoption proceedings, as required by Section 163.3177(8) and Rule 9J-5.005(1)(c).
Whether the subject plan amendments, as well as the adoption process, are consistent with the criterion of notice to owners of real property affected by official actions during the land use planning process, as required by Rule 9J-5.004(2)(a).
Whether the subject plan amendments, as well as the adoption process, are consistent with the criterion that officials consider and respond to public comments on proposed plan amendments, as required by Rule 9J- 5.004(2)(e).
Whether the subject plan amendments, as well as the adoption process, are consistent with the criterion that officials keep the general public informed as to the planning process concerning amendments, as required by Rule 9J-5.004(2)(b).
Whether the subject plan amendments are consistent with the criterion of a policy addressing implementation activities for the protection of environmentally sensitive lands, as required by Rule 9J-5.006(3)(c)6.
Whether the subject plan amendments are consistent with the criterion that the future land use map reflect the operative provisions of the plan, as required by Rule 9J-5.005(5)(b).
Whether the plan, after the subject plan amendments, is, as required by Rule 9J-5.005(5), internally consistent with respect to Future Land Use Element Policy 1.4.3 and the future land use map, on the one hand, and Conservation Element Objective 84.3 and Policy 84.3.3, on the other hand; and Future Land Use Element Policy 1.4.3 and the future land use map, on the one hand, and Community Services and Facilities Element Objective 41.2 and Policies
41.2.1 and 41.2.2, on the other hand.
Whether the subject plan amendments are consistent with the criterion, as required by Section 163.3184(1)(b), that the local government comprehensive plan must be consistent with the following Policies of the applicable regional plan: 8.B.3; 10.A.2; 10.A.3; 16.A.3.a; 16.A.3.c; 16.B.1.a; 25.C.2;
25.C.3; and 25.C.4.
Whether the subject plan amendments are consistent with the criterion, as required by Section 163.3184(1)(b), that the local government comprehensive plan must be consistent with the following provisions of the State comprehensive plan: Section 187.201(10)(b)1. and 7.

The witnesses called and exhibits admitted into evidence are set forth in the transcript and the proposed recommended orders.

Rulings on the proposed findings are set forth in the appendix.

FINDINGS OF FACT

I. Background

Petitioners own legal and/or equitable interests in about 8600 acres in northwest Lee County (the Property). North and west of the Caloosahatchee River, the Property abuts Cape Coral on the south, US 41 on the east, Burnt Store Road on the west, and Charlotte County on the north. The Property is about one and one-half miles east of Charlotte Harbor. Gator Slough runs through the southeast corner of the Property before emptying into Charlotte Harbor.
Acquired almost entirely in the 1950's, the Property is not entirely contiguous. It occupies ten entire square-mile sections and parts of six more square-mile sections in unincorporated Lee County. Petitioners also own about one-third of an adjoining section in Cape Coral, but this area is not relevant to the present case.
Lee County adopted its comprehensive growth management plan under Section 163, Part II, Florida Statutes, (the Act) on January 31, 1989 (without regard to the subject plan amendments, the Plan).
The Department of Community Affairs determined that the Plan was not in compliance with the Act. Litigation ensued under Section 163.3184(10) and remains pending as DOAH Case No. 89- 1843GM, as well as two other related cases.
A partial settlement was reached in DOAH Case No. 89- 1843GM. Petitioners' interests in the above-described 8600 acres were represented in DOAH Case No. 89-1843GM by Intervenor Wiss, as Trustee. Intervenor Wiss declined to enter into the settlement, but his claims were abated with the remainder of the case while Lee County considered and adopted settlement amendments.
As part of the plan amendment process, there were two meetings of the local planning agency, which were properly noticed by newspaper publication. As required, notice of the transmittal hearing of March 3, 1990 was also published. The two adoption hearings, which were held on September 6 and 12, 1990, were also properly noticed by newspaper publication. County representatives generally considered all comments and responded to many comments, including some but not all of the comments made on behalf of Petitioners.
Pursuant to the settlement agreement, on September 6 and 12, 1990, Lee County adopted Plan Amendments 90-1 and 90-2 (the Plan Amendments), which are the subject of the present case. The Plan, as amended by the Plan Amendments, will be referred to as the Amended Plan.
The Plan Amendments are included in a three-volume package, which is Petitioners Exhibit 331. The third volume, Petitioners Exhibit 331.c, contains the Plan Amendments, as well as accompanying data and analysis. (The data and analysis compiled and submitted to DCA with the original Plan or later with the Plan Amendments will be referred to as the Data and Analysis.)
Among other things, the Plan Amendments resulted in the redesignation of 96,712 acres on the future land use map (FLUM) from Open Lands and Rural to a new future land use category, Density Reduction/Groundwater Resource. Three areas received the new designation. One is a large area in southeast Lee County south of Lehigh Acres and east of Interstate 75. Another area is a strip about
20 miles east-west and two miles north-south bordering the Charlotte and Hendry County lines.
The third area designated Density Reduction/Groundwater Resource includes the Property. The 16 sections in unincorporated Lee County wholly or partly owned by Petitioners and constituting the Property lie within an area of
23 contiguous square-mile sections that are generally designated Groundwater Resource/Density Reduction. The larger area designated

Groundwater Resource/Density Reduction almost completely occupies the above-described area of unincorporated Lee County from Burnt Store Road on the west between Charlotte County and Cape Coral to US 41 on the east with the exception of about two square-mile sections designated Suburban along US 41 south of the portion of the Property abutting US 41.
As is the case with the other two areas designated Density Reduction/Groundwater Resource, the only other designation on the Property and the larger area of 23 sections is Resource Protection Areas and Transition Zones. The areas designated Resource Protection Areas and Transition Zones in the 23-section area represent substantial acreage, especially in the northern and western halves of the 23-section area.
The Data and Analysis accompanying the Plan Amendments explain the purpose and effect of the Density Reduction/Groundwater Resource designation:

During the state agency review of the 1989 Lee Plan, concern was expressed that, in sparsely-developed areas which coincide with areas of potential future water supply development, allowable densities were inconsistent with effective land use planning and too high for protection of groundwater resources. While a comprehensive assessment of existing programs that relate to water resources has already been accomplished (pp. II(e)-I through II(e)-27 of the support documentation of the Community Facilities and Services Element of the 1989 Lee Plan), the assessment did not include an evaluation of appropriate densities in sensitive water resource areas.

Four regional investigations conducted over the past decade provide the basis for estimating future water demand, predicting likely supply sources to meet that demand, and developing strategies to insure that sources of supply are not depleted or degraded. The 1981 investigation by Hole, Montes & Associates, Inc.

[Hole Montes Study; citation omitted] defined and mapped Lee County groundwater sources east of U.S. 41, evaluated their long-range potential for sustained withdrawals, examined future wellfield options, and outlined a Water Master Plan for potable supply and distribution. The South Florida Water Management District (SFWMD) described, in its 1982 report [Reconnaissance Report; citation omitted], the hydrogeology and groundwater quality of Lee County, and suggested conceptual land-use controls to preserve and maximize water supply potential. The 1987 work by Camp, Dresser & McKee, Inc. (CDM) [Camp Dresser Report; citation omitted] detailed the geometry and hydraulic characteristics of hydrogeologic units, modeled groundwater flow throughout the County, and furnished the technical foundation for the recently-enacted Wellfield Protection Ordinance. James M. Montgomery, Consulting Engineers, Inc., completed an investigation [Montgomery Study; citation omitted] in 1988 that included a detailed assessment of future water demand, a comprehensive reevaluation of groundwater resources, and an analysis of measures needed to ensure that future demand does not exceed supply capability.

Projected future water demand has most recently been addressed by the Montgomery study. Demand was evaluated for the case in which all reasonable conservation methods were adopted, and for the case in which conservation was no greater than currently practiced. With extreme conservation, total demand in Lee County is predicted to increase from 132 million gallons per day (MGD) in 1988 to 234 MGD in 2010; the corresponding increase in potable demand supplied by utilities is from 22 MGD in 1988 to 55 MGD in 2010. Without concerted conservation efforts, total demand is predicted to rise from 194 MGD in 1988 to
368 MGD in 2010; 1988 utility demand will increase from 39 MGD to 102 MGD. If, for discussion purposes, the middle of these ranges is selected as a basis for water supply planning, the total need for additional water in 2010 will increase by 85%, to 301 MGD; the need for potable water supplied by utilities in 2010 will increase by 157%, to 78.5 MGD.

Where this additional water will come from has been addressed by several of the regional investigations. The three sources which have been identified and considered are: a) shallow aquifers that are recharged by local rainfall; b) deeper aquifers that contain slightly saline to saline water; and c) the Caloosahatchee River. Regarding increased withdrawals from the River, the Montgomery study concludes that the discharge pattern is unreliable and strongly dependent upon upstream releases managed by the SFWMD. Additional supply might
be feasible, but will likely be limited by competition from other users. In any event, off-stream storage (for example, a reservoir) would be required. No additional quantities can currently be predicted or assured.

Increased used of deeper aquifers that underlie Lee County will probably play some role in meeting future demand, though there is little documentation of the long-term supply capability of these sources. The two aquifers in question are the Lower Hawthorne and the Suwannee aquifers, informally named to correspond with their occurrence in identified geologic units. While both aquifers are suspected to contain large volumes of developable water, it is generally agreed that some form of desalinization (for example, reverse osmosis) will be necessary to make water from these sources suitable for potable use. As a consequence, two attendant disadvantages arise. One is the substantial cost associated with desalinization, a result of the energy-intensive nature of the treatment process. Second is the need for, and expense of providing, an environmentally acceptable method for disposing of the brine that is a treatment byproduct. This is commonly accomplished by deep well injection, at rather extraordinary cost.

Among the investigations previously cited, there is a consensus that the shallow aquifers in Lee County have the greatest potential for meeting future water supply needs. These aquifers are, in descending order from land surface, the Water Table, Lower Tamiami, and Sandstone aquifers. Each has its own particular areal extent, depth, thickness, hydraulic properties, water quality, and current usage, but they have in common the important characteristic of being recharged locally, from rainfall, surface water, and downward seepage. Because they are relatively shallow and not overlain by thick clayey sediments, they share as well a sensitivity to, and the potential for, impact as a result of man's activities at land surface. This sensitivity is especially pronounced for the Water Table aquifer, which responds directly and rapidly to surface conditions. Furthermore, this latter aquifer has been identified in the Hole- Montes and Montgomery studies as the single largest source of future potable water supply.

A reduction in recharge to the Water Table aquifer occurs when the average elevation of the water table is lowered, most typically by promoting and accelerating runoff through drainage improvements. The consequences of a reduction in recharge to the water table aquifer are: a) a decrease in recharge to underlying aquifers and a lowering of their potential for sustained withdrawals; b) a reduction in the volume of water available for use (termed the "safe yield"); and c) a loss in aquifer storage, which represents an increased probability of environmental impacts during prolonged dry periods.
All regional studies which have addressed this issue conclude that maximizing the potential of shallow aquifers in Lee County requires, through appropriate land use controls, the water table to be maintained at or above existing levels. This is especially important because very little rainfall recharges the aquifer during the winter. This dry period coincides with Lee County's seasonal population peak (and corresponding peak water demand).

Water quality impacts to the Water Table aquifer are of particular concern, as there is no overlying confining layer to prevent or retard the entry of contaminants. Once introduced, pollutants will migrate to underlying shallow aquifers, because these are recharged from above, and towards wellfields, because these are normally downgradient, discharge areas. Experience demonstrates that contamination may spread, undetected, in a plume-like fashion over large areas, and may be extremely costly to correct. While these concerns
have been addressed for existing wellfields through adoption of the Wellfield Protection Ordinance, future wellfield areas, which have been identified only on a broad regional basis, have no such protection.

Though the water table aquifer is recharged almost everywhere in Lee County, hydrologic studies have identified specific areas in which recharge is particularly effective, and corresponding areas which hold the greatest potential for future water supply development (figure II.D-l). Delineation of these areas has also been accomplished for the Lower Tamiami aquifer (figure II.D-2) and, to a lesser extent, the Sandstone aquifer (figure II.D-3). South of the Caloosahatchee River, these areas can be generally described as land east of 1-75 and south of SR 82. North of the Caloosahatchee River, areas important for both their recharge function and their potential for future withdrawals include non-urbanized areas near Charlotte County (figure II.D-4).

Water supply development in the most favorable areas depends on the ability to capture water that is otherwise lost to evaporation and runoff, and on maintaining acceptable water quality. The principal constraint on the volume of available water is likely to be avoidance of impacts to wetlands, which, particularly in the southern area, are abundant. Studies suggest that, for environmental protection, it may be necessary to abandon traditional concepts of large, focused withdrawals from relatively small wellfield areas. Instead, low- yielding wells widely spaced from one another may be required [citation to Hole Montes Study]. As a consequence, it is not unlikely that most to all favorable recharge and water supply areas will eventually be within the cone of depression of one or more wellfields.

Estimates of the safe yield of promising water supply areas north of the Caloosahatchee River have not been made, and will require additional data collection and on-site testing. For favorable areas south of the river, the Hole-Montes investigation concludes that the safe yield may be limited by environmental constraints to about 70 MGD, or only 23% of the averaged 301 MGD which would be required in 2010. Regional investigations are unanimous in their conclusion that land- use controls are necessary to preclude activities which, through increased runoff or water quality degradation, may decrease the potential safe yield of these shallow groundwater resources.

There is no universal consensus as to the proper type of land-use controls which are needed to protect shallow groundwater resources. Lee County is in the forefront of communities which prohibit the use of many toxic substances near potable wells and protect the quality of discharges which may affect existing potable water wells. However, the weakness of the current regulations is that urban development can under certain circumstances take place in the very areas which are expected to provide the community's future water supply.

However, Lee County is fortunate in that a very considerable portion of the overall land mass is available for development and in fact is more favorably suited for urban development than is the land in the prime groundwater resource areas. There is no need to choose between protecting future groundwater resources and limiting overall development opportunities. The Future Land Use Map designates ample land for urban development over the coming several decades.

Therefore, a conservative approach can be taken which encourages urban development in accordance with the overall concepts of the Lee Plan, yet restricts such development in the prime groundwater resource areas. As more is
learned about techniques for protecting these areas, it is possible that the restrictions against urban development can be modified. But there is no need to experiment with such a crucial part of the community's future at this time.

Of course, reasonable use must still be allowed to land owners in these areas. An example of such uses are rural residential development at very low densities; limerock and fill dirt mining which cause no significant alteration of groundwater levels; all conservation uses; and continued agricultural activities. But urban development, with its resulting demands for improved drainage and associated commercial/industrial/institutional development, should not be permitted.

To provide for protection of recharge and future water supply areas, the following changes are hereby made to the Lee Plan[.]

Petitioners Exhibit 331.c, pages II-4 to II-12.
The above-cited Data and Analysis also contain four figures: Montgomery Study Plates 83-85 (Figures II.D-1 through II.D-3, respectively), which show places with potential well development areas for public water supply, and Hole Montes Study Plate 19 (Figure II.D-4), which shows places with potential for additional groundwater development.
The most relevant provisions of the Amended Plan are set forth below. Changes made by the Plan Amendments are shown by striking through deletions and underlining additions. Underlined portions of the Amended Plan are shown in boldface.
Future Land Use Element (FLUE) Objective 1.4 divides "Non-Urban Areas" into three designations that "are not anticipated for urban development at this time." The

designations are Rural, Outer Islands, and the new category, Groundwater Resource/Density Reduction.
FLUE Policy 1.4.3 provides:

The Density Reduction/Groundwater Resource areas include upland areas that provide substantial recharge to aquifers most suitable for future well field development. These areas also are the most favorable locations for physical withdrawal of water from those aquifers. Only minimal public facilities exist or are programmed. Land uses in these areas must be compatible with maintaining surface and groundwater levels at their historic levels. Permitted land uses include agriculture, mineral and limerock extraction, conservation uses, and residential uses at a maximum density of one dwelling unit per ten acres (1 du/10 acres). Individual residential parcels may contain up to two acres of resource protection areas and transition zones without losing the right to have a dwelling unit, provided that no alterations are made to those wetland areas.
FLUE Objective 1.5 identifies "Environmentally Sensitive Areas," which "because of overriding environmental considerations" allow development "only at very low densities and intensities." Objective 1.5 divides "Environmentally Sensitive Areas" into two designations, Resource Protection Areas and Transition Zones, which are combined into a single designation on the FLUM.
FLUE Policy 1.5.1 provides:

The Resource Protection Areas include lands that exhibit soil types, hydrology, and vegetation characteristic of freshwater and saltwater wetlands. They are areas in which it is necessary to protect, conserve, restore, or preserve water resources systems and the biological functions attendant thereto. These areas are unsuitable for all but extremely low-density development for one or more of the following reasons:
1. To prevent degradation of water quality.
2. To prevent degradation of freshwater storage capabilities.
3. To prevent the degradation of biological productivity.
4. To prevent damage to property and loss of life due to flooding.
5. To prevent degradation of the viability and diversity of native plants and animals and their habitats.
6. To assure the conservation of irretrievable or irreversible resources.
  
  Permitted land uses in the Resource Protection Areas consist of very low density residential use and uses of a recreational, open space, or conservation nature that will not adversely affect the area's critical environmental character. The construction of ditches, canals, dikes, or additional drainage is prohibited. Roads above grade may be permitted under specific limited conditions as outlined in the Lee County Wetlands Protection Ordinance, as the same may from time to time be amended. Maximum density is one dwelling unit per forty acres (1 du/40 acre) except as otherwise provided in Table 1.
FLUE Policy 1.5.2 states:

The Transition Zones include lands that may be seasonally inundated from one to three months as indicated by water marks, do not have depressional soils, and are characterized by a mixture of plant species typical of uplands and wetlands. These areas consist of important water resource areas such as seasonal wet prairies; ephemeral ponds, and/or natural flow-ways and are associated with freshwater and saltwater wetlands. Transition Zones provide a hydrological connection between wetlands and uplands and provide protection and buffering of wetlands from fire, water pollutants, and exotic vegetation.
Permitted land uses in the Transition Zones consist of very low density residential use and uses of a recreational, open space, or conservation nature that will not adversely affect the area's critical environmental character. The construction of ditches, canals, dikes, roads above grade, or additional drainage is prohibited unless it is demonstrated that such proposed construction will not: cause higher rates of runoff or degradation of water quality or retention capacity; increase the possibility of flooding; or otherwise alter the existing wetland systems. Maximum density is one dwelling unit per twenty acres (1 du/20 acre) except as otherwise provided in Table 1.
FLUE Policy 1.8.5, which was added by the Plan Amendments, precludes the use of a planned unit development for areas designated Density Reduction/Groundwater Resource.
Community Facilities and Services (Community Facilities) Element Goal
32 is:

To ensure that future populations have access to potable water supplies and services at a reasonable price by using and encouraging conservation and resource management measures to reduce consumption of potable water.
Community Facilities Element Objective 32.1 is to implement specified programs by specified dates to "reduce potable water consumption and consumption of large volumes of potentially potable raw water, by 5% by 1994."
Community Facilities Element Goal 39 is:

To protect the county's potential groundwater resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.
Community Facilities Element Objective 39.1 is to consider surface water runoff as a "possible resource" and requires the County to "consider integrating the use of surface water runoff in any supply program or strategy .
. .."
Community Facilities Element Policy 39.1.1 states:

Lee County recognizes that all fresh waters are a resource to be managed and allocated wisely, and shall support allocations of the resource on the basis
1) of ensuring that sufficient water is available to maintain or restore valued natural systems, and 2) of assigning to any specified use or user the lowest quality fresh water compatible with that use, consistent with financial and technical constraints.
Community Facilities Element Policy 39.1.2 provides:

The County shall explore, and implement where financially and technically feasible, all existing options for storing and utilizing excess surface water runoff for human consumption and other uses. Such options may include surface impoundments; back-pumping to reservoirs, to upland wetlands, or to ground storage; and ground storage by ex-filtration systems or by aquifer storage and recovery systems. Maximum contaminant levels consistent with Florida DER and US EPA regulations governing receiving waters will be met through treatment as required. Excess surface water runoff shall be defined as the water not required to maintain, or to restore to either historic natural conditions or to some other acceptable state, the hydrograph of streams discharging to estuarine waters or other valued wetland systems.
Community Facilities Element Policy 39.1.3 states:

In the event that the timing and volume of fresh-water discharges necessary to maintain the health and productivity of estuaries and other wetlands cannot be determined or supported by existing scientific data, the County shall sponsor, in collaboration with other agencies, institutions, and organizations, adequate research programs to make such data available by 1995.
Community Facilities Element Policy 39.1.4 states:

The county's Surface Water Management Master Plan shall place particular emphasis on 1) routing surface water runoff from areas of excess to areas where additional subsurface storage is available; and 2) maintaining and increasing historic surface and groundwater levels in the Density Reduction/Groundwater Resource land use category.
Community Facilities Element Objective 39.2 is to:

Support a surface water management strategy that relies on natural features (flow ways, sloughs, strands, etc.) and natural systems to receive and otherwise manage storm and surface water.
Community Facilities Element Objective 39.3 is:

By 1990, Lee County shall provide sufficient performance and/or design standards for development protective of the function of natural drainage systems.
Community Facilities Element Policy 39.3.1 is to: "Provide sufficient performance and design standards to require post-development runoff to approximate the total characteristics of the natural flow prior to development." Community Facilities Element Policy 39.3.4 states: "Natural flow patterns shall be publicly restored where such action is of significant public or environmental benefit, and feasible."
Community Facilities Element Goal 41 is: "To protect the County's groundwater supplies from those activities having the potential for depleting or degrading those supplies." Community Facilities Element Objective 41.1 and related policies describe a wellfield protection ordinance to protect the "quality of water flowing into potable water wellfields."
Community Facilities Element Objective 41.2 states:

During 1989, the cCounty staff shall review all technical data identifying concerning aquifer groundwater recharge areas throughout in Lee County as it becomes available, and propose any necessary modifications to the Future Land Use Map or general county regulations necessary to protect or improve such areas.
Community Facilities Element Policy 41.2.1 provides:

Based on best available technical data, the County shall designate appropriate areas of the county as sources for future potable water supply and revise development regulations to preclude incompatible uses of this land.
Community Facilities Element Policy 41.2.2 states:

A new land use category, called the Density Reduction/Groundwater Resource category, shall be applied to protect the County's groundwater resources and principal recharge areas. Land use controls in the category shall be as described in Policy 1.4.3.
Community Facilities Element Objective 41.3 is to:

Base all future development and use of groundwater resources on determinations of the safe yield of the aquifer system(s) in order not to impair the native groundwater quality or create other environmental damage. Criteria for safe-yield determinations shall be established through groundwater supply and surface water management studies over the years 1989-1993.
Community Facilities Element Policy 41.3.1 states:

For maximum protection of groundwater resources, identify future wellfields and/or relocation site(s) for existing wellfields well in advance of need.
Coordinate with SFWMD, other water suppliers, and DER to avoid duplication and to assist in data collection and interchange.
Community Facilities Element Policy 41.3.3 provides:

Identify water needs consistent with projections of human population and the needs of natural systems in order to determine the future demands for groundwater. Expand current programs to identify and map the contamination potential of groundwater resources for those areas of Lee County not currently under public ownership.
Conservation and Coastal Management (Conservation) Element Objective
84.3 states:

Land uses and development designs must protect the values and functions of wetlands, and to the maximum extent possible, avoid the drainage, filling, isolation, and excavation of wetlands.
Conservation Element Policy 84.3.3 states: "Absent overriding public needs, access roads and land development in the Resource Protection Areas and Transition Zones shall be strongly discouraged."
Conservation Element Goal 87 is: "To conserve, manage, protect, and improve the natural hydrologic system of Lee County to insure continued water resource availability." Conservation

Element Objective 87.1 is to: "Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems."
Conservation Element Policy 87.1.1 states: "Natural water system features which are essential for retention, detention, purification, runoff, recharge, and maintenance of stream flows and groundwater levels shall be identified, protected, and managed." Conservation Element Policy 87.1.3 is to manage freshwater resources to "maintain adequate freshwater supplies during dry periods and to conserve water."
On October 18, 1990, DCA issued a notice of intent to find the Plan Amendments in compliance. On November 16, 1990, Petitioners filed a petition challenging the determination and commencing the subject case. (One of the Petitioners in the present case, Intervenor Wiss, as Trustee, elected not to participate further in DOAH Case No. 89-1843GM.)
In the negotiations between DCA and Lee County that culminated in the settlement agreement, each party approached the designation of the northwest part of Lee County from a different perspective. DCA was primarily interested in lowering densities in rural areas, and Lee County was primarily interested in protecting potential sources of potable water. Both interests were served by designating the entire 23-section area, of which the Property is a large part, as Density Reduction/Groundwater Resource with a density of one dwelling unit per 10 acres (1:10), except for smaller areas designated as Resource Protection Areas and Transition Zones. Much of Petitioners' challenge concerns the adequacy of the data and analysis supporting the Density Reduction/Groundwater Resource designation assigned to the Property.
Prior to adopting the Plan Amendments, the County hired David Gomberg, Ph.D., a groundwater resources consultant, to determine whether data and analysis supported the Density Reduction/Groundwater Resource designations. County staff directed Dr. Gomberg to review available technical information related to groundwater resources in Lee County. The primary materials were the Hole Montes Study, Reconnaissance Report, Camp Dresser Report, and Montgomery Study (the Four Studies). County staff then requested Dr. Gomberg, following his review of the data and analysis, to prepare text to be incorporated into the Data and Analysis in support of the Plan Amendments.
The Hole Montes Study, which is entitled the Lee County Water Master Plan, was completed in December, 1981, and presented to the County on January 26, 1982. The study includes a plan for the "development, protection, and management of water resources until 1995."
The Hole Montes Study ignores northwest Lee County-- specifically all of Lee County west of US 41 and north of the Caloosahatchee River. Figure 9-1 (Petitioners Exhibit 51.a) shows two areas to be protected as sources of potable groundwater. One area, which is north of the Caloosahatchee River, is a narrow band running about 20 miles east-west from the vicinity of US 41 to the Hendry County line on Lee County's east boundary. This area abuts Charlotte County to the north. The other area encompasses most of the County south of the river and east of US 41, including the Lehigh Acres area. Much of the two areas are designated as Density Reduction/Groundwater Resource on the FLUM.
The Hole Montes Study recommends that development in the two areas described in the preceding paragraph be required to meet certain standards, such as that post-development runoff be less than predevelopment runoff, historic wet season water levels be maintained, and the storage and use of pollutants be regulated.
The Hole Montes Study defines the water table aquifer as the "saturated deposits between the water table and the top of the upper confining unit." Petitioners' Exhibit 51.b, page 19.
The Hole Montes Study defines transmissivity as a "numerical expression of an aquifer's capability to transmit water." Id. at page 21. Concerning transmissivity, the Hole Montes Study elaborates:

It is generally advantageous to site a wellfield where an aquifer has its highest transmissivities. In these areas fewer wells will be needed to meet demand, while producing the least detrimental effect upon water levels in the area.
Id.
With respect to its study area, which excludes the area of the Property, the Hole Montes Study recommends that, as to transmissivities, large wellfields tapping the water table aquifer are most suitable in the southeast part of the County. In the remainder of the study area, where transmissivities are lower, "large supply [wellfield] development would still be viable although somewhat more expensive." Id. at page 22.
In general, though, the Hole Montes Study is of little additional value in supplying data and analysis directly relevant to the Density Reduction/Groundwater Resource designation given the Property.
The Reconnaissance Report, which was completed in January, 1982, covers all of Lee County. Prepared by the South Florida Water Management District (SFWMD), the Reconnaissance Report was intended to "provide a basis for the optimal development and management of the groundwater resources in the area." Lee County Exhibit 52.a, page 4. The introduction to the report notes that this comprehensive hydrogeologic assessment and reevaluation of Lee County's groundwater was necessitated by various factors, including the "complexity of the hydrogeologic systems" that make it more difficult to "identify zones of high production within the aquifers" and the lowering of water levels caused by groundwater withdrawals due to the "relatively low transmissivities in some of the aquifers." Id.
The Reconnaissance Report explains that aquifers are "rocks which will yield water in sufficient quantity to be valuable as a source of supply" and confining zones are "low permeability rocks which lie above, between or below aquifers."

Lee County Exhibit 52.1, page 41. The report identifies five major aquifers or producing zones in Lee County. From highest elevation to lowest, they are the surficial aquifer, Sandstone aquifer, mid-Hawthorn aquifer, lower Hawthorn/Tampa producing zone (part of the Floridan aquifer), and Suwannee aquifer. Id.
Plate 2 of the Reconnaissance Report shows the thickness of the surficial aquifer throughout Lee County. Six of the square-mile sections lying in the northcentral part of the Property are between the 50' and 75' contours. The remaining ten partial or whole sections constituting the Property lie between the 25' and 50' contours. Areas above the 50' contour are relatively thick for Lee County, according to Plate 2, and are surpassed only by the southeast corner of the County where the surficial aquifer thickness rapidly increases from 50' to over 125'.
The Reconnaissance Report cautions that the surficial aquifer is hydrogeologically complex. The producing zones and transmissivities may be difficult to measure and locally variable due to a number of technical factors.
The Reconnaissance Report indicates that the elevation of the water table aquifer is subject to significant seasonal fluctuations. The main source of recharge is direct infiltration of precipitation. However, rainfall averages through Lee County vary by a surprisingly large amount. According to the report, average annual rainfall over northwest Lee County is less than 48 inches and over southwest Lee County is more than 68 inches. Lee
County Exhibit 52.a, page 67.
The Reconnaissance Report identifies three other important sources of recharge to the surficial aquifer. They are subsurface inflow from adjacent areas, inflow from surface water bodies, and upward leakage from underlying semi-confined aquifers.
There are six sources of loss of water from the surficial aquifer.
The sources of discharge are flow into streams, springs, and lakes; direct flow into the Gulf of Mexico or various bays and sounds; evapotranspiration; downward leakage into underlying semi-confined aquifers; subsurface outflow to adjacent areas; and pumping from wells.
The Reconnaissance Report summarizes that the major constraints on the availability of groundwater are well yield and water quality. The two major factors affecting well yield are transmissivity and storage. Based on a "subjective" analysis of these factors, the report concludes, in Figure 55, that Lee County may be divided into three areas in terms of development potential for the surficial aquifer: good potential, moderate potential, and poor potential.
The only area of good potential is the southeast corner of the County corresponding roughly to where the surficial aquifer thickens quickly. The areas of poor potential are the barrier islands, Pine Island, a strip of 1-2 miles inland from Charlotte Harbor north of the Caloosahatchee River, a wider strip along the coast south of the river, a band about four miles wide encompassing the river, and the Lehigh Acres area. The remainder of the County, including the Property, is shown as moderate potential. This area corresponds roughly with the three areas designated Density Reduction/Groundwater Resource.
Addressing the area north and west of the Caloosahatchee River on both sides of US 41, which includes the Property, the Reconnaissance Report states:

This assessment [of moderate potential for the development of groundwater from the surficial aquifer] is based on lower transmissivity values (20,000 to 40,000 gpd/ft.) which are probably related to the fact that the aquifer is thinner in this area (25 feet to 40 feet). However, these areas also lack thick, highly permeable beds such as those found in [the southeast corner of the County]. However, water quality is generally acceptable in this area and moderate supplies could be developed with proper well construction and wellfield design. Wells finished in [the area of moderate potential] would probably yield less water than wells in [the southeast corner of the County].

Lee County Exhibit 52.a, page 161.
The Reconnaissance Report recommends, among other things, the collection of additional data and the implementation of land use planning to protect major regional recharge areas of the surficial aquifer. Lee County Exhibit 52.a, pages 181-82.
The Camp Dresser Report, which was prepared in November, 1987, addressed existing wellfields and was intended to assist the County in the preparation of a wellfield protection ordinance. The Camp Dresser Report contains no data or analysis particularly pertinent to the subject case, except that it found, after reviewing the available data, that the thickness of the water table aquifer at Well L-653 was 60 feet.
The most recent and relevant of the Four Studies is the Montgomery Study, which was presented to Lee County on October 5, 1988. The study area includes all of Lee County as well as hydrogeologically relevant parts of surrounding areas. The study analyzes the water table, Lower Tamiami (which is part of the surficial aquifer system, but is located south of the Caloosahatchee River), Sandstone (which is part of the intermediate aquifer system), Mid- Hawthorn (which is part of the intermediate aquifer system), and Lower Hawthorn aquifers.
The Montgomery Study stipulates four criteria as preconditions for the suitability of the water table aquifer for wellfield development. The factors are: aquifer thickness of at least 30 feet, transmissivity of at least 100,000 gallons per day per foot, chloride levels of no more than 250 mg/l, and consideration of existing wellfields and their proximity to any proposed wellfield. Petitioners' Exhibit 144.a, Table 4-1, page 4-2.
For thickness, transmissivity, and storage, as well as other factors, the Montgomery Study collected substantial data and then statistically extrapolated results for locations for which direct data were not available. This process is called kriging.
Defining transmissivity as "a measure of the ability of an aquifer to transmit water through the aquifer material to the well," the Montgomery Study explains that transmissivity is a product of the "hydraulic conductivity of an aquifer multiplied by the aquifer thickness." Petitioners' Exhibit 144.a, pages 4- 1 and 4-3. Given equal withdrawal rates and storage values, the greater the transmissivity value, the lesser the drawdowns.
Addressing aquifer thickness, the Montgomery Study states:

From a technical standpoint a wellfield can be developed in a water table aquifer if the transmissivity is high enough regardless of the thickness of the aquifer. However, from a wellfield protection standpoint, a minimum thickness of aquifer is necessary to prevent or retard a potential discharge of contaminants from immediate intake at the wellhead. . . . Valid arguments can probably be presented for a criterion involving either a greater or smaller aquifer thickness. To provide for a minimum of wellfield protection we have arbitrarily selected a thickness of 30 feet as a minimum thickness in this trade-off. This thickness has also been selected with the understanding that implementation in the future of a wellfield protection ordinance by Lee County will be necessary to properly protect a wellfield at this shallow depth.

Petitioners' Exhibit 144.a, page 4-3.
The Montgomery Study warns that wetland impacts from wellfields in the water table aquifer must be evaluated on a case-by-case basis. The study finds that water levels are declining in the water table aquifer, despite the readily available surface water recharge. About 56% of the wells in the water table aquifer show declining water levels. But the problem of declining water levels is even worse in the intermediate aquifers and almost as bad in the Lower Hawthorn aquifer. Petitioners Exhibit 144.a, page 4-34.
Cautioning that "[q]uantification of absolute amounts of ground water which are available for use is very difficult," the Montgomery Study calculates "on a gross scale" the amount of water that may be available for withdrawal from each of the studied aquifers. Petitioners' Exhibit 144.a, page 4-28. To permit
closer evaluation of potential drawdown issues, the analysis of the water table aquifer considers total storage, storage in the top two feet of saturated aquifer, and storage in the top foot of saturated aquifer. Id. at page 4-30.
The Montgomery Study concludes:

The Water Table aquifer in conjunction with the Lower Tamiami aquifer and the Lower Hawthorn aquifer are the major potential aquifer sources of water supply to Lee County. . . . [T]he Water Table and Lower Hawthorn aquifers have the highest storage values of all the aquifers. Water availability from the Water Table aquifer is not precisely known. However, based on the amount of storage available from even a one or two foot thickness of the Water Table aquifer, a significant amount of water is available. Extraordinary measures for withdrawal may be necessary, including: (1) using large well spacings to reduce drawdowns near wetlands, (2) developing smaller wellfields rather than large supplies, and (3) mitigation of impacts on wetlands such as by discharge of water into wetlands to eliminate drawdown impacts or development of replacement wetlands by use of Caloosahatchee River water. Development of the pending three dimensional ground water flow model by the SFWMD will shed additional light and perhaps provide a more quantitative estimate of water availability from the Water Table aquifer.

Petitioners' Exhibit 144.a, page 4-45.
The Montgomery Study finds that the entire County is a recharge area for the water table aquifer. Petitioners' Exhibit 144.a, Table 4-43, page 4-

118. The study notes that natural groundwater aquifer recharge areas provide numerous benefits, including the capture and filtration of water for vertical flow, the supplying of an energy gradient that will make groundwater flow into an aquifer, the supplying of potentiometric head and groundwater flow to retard the inland movement of salt water, the supplying of better-quality water requiring less treatment in connection with wellfield development, and the growth and development of wetlands.

As to the wetland function of natural recharge areas, the Montgomery Study continues:

In Lee County, wetlands abound over the recharge area for the Water Table aquifer. Wetlands have formed over the recharge area because water levels are above or close to the surface of the Water Table aquifer most of the year. The indication is that wetlands will form over a recharge area when the aquifer tends to be overflowing or close to fully recharged.

Wetlands have intrinsic value as part of the natural resources of Lee County. Wetlands also act as buffers to the water level and level of recharge within the aquifer. Wetlands accept both surface water runoff and discharge from the Water Table aquifer during the wet seasons when water levels are high. During the dry season, when water levels are low, the wetlands in turn provide recharge to the aquifer.

Petitioners' Exhibit 144.a, page 4-126.
Montgomery Study Plate 83 shows where in the County existing and proposed wellfields are located with regard to the water table aquifer. Most of Lee County bears no marking, indicating that it is unsuitable for wellfield development in the water table aquifer.
However, Plate 83 also bears three other designations. One area in south Lee County is marked: "Areas which appear hydrologically suitable for well development but will require wetland mitigation." Most of the portion of this area in Lee County adjoins vast areas of wetlands that are marked: "Wetlands--Not suitable for well development."
Smaller areas in north Lee County are marked: "Areas where well development may be possible--will require additional investigation and wetland mitigation." These areas include almost the entire extent of the Property, as well as two other areas of similar size along the north Lee County border. Much of the northcentral part of the Property also bears a Wetland designation.
Lee County used other sources of data and analysis concerning the suitability of the Density Reduction/Groundwater Resource designation for the Property. For instance, Map I-12 of the Southwest Florida Regional Plan's data and analysis shows Gator Slough as one of the 15-20 major sloughs and swamps in the entire six-County region. Generally, the findings of these other sources conform to the findings contained in the Four Studies.
Each of the Four Studies was prepared by qualified persons with appropriate areas of expertise, including hydrogeology. The Four Studies meet all relevant professional standards, as do the methodologies employed in connection with investigations conducted as part of the Four Studies.
The Four Studies are not flawless. Originally, the Montgomery Study was to include extensive field testing, which was not performed for financial reasons. Other shortcomings were identified by Petitioners' expert, Thomas M. Missimer, who is the founder and principal hydrogeologist of the firm of Missimer and Associates, Inc. Mr. Missimer based his testimony not only on his considerable technical expertise, but also on an unusually extensive experience of the hydrogeology of the area. Mr. Missimer's work as far back as 1976 appears as a source of the Four Studies.
Most significantly, Mr. Missimer testified that the aquifer thickness data for well L-653 is incorrectly reported as 60 feet when it in fact was only
20 feet. The Reconnaissance Report, Camp Dresser Report, and Montgomery Study all rely on the 60-foot value. Given the absence of data points in the area of well L-653 and its location on the northern edge of the Property, the accuracy of the aquifer thickness value significantly affects the kriged aquifer thickness value extrapolated for the water table aquifer under the Property.
Based on Mr. Missimer's testimony, the evidence is, to the exclusion of fair debate, that the correct value for the aquifer thickness of well L-653 is 20 feet and the extrapolated value for the thickness of the water table aquifer underneath the Property is considerably less than as stated in the Montgomery Study. According to Mr. Missimer's testimony, which is credited on this point, the appropriate dry-season water table aquifer thickness for the Property ranges from 18-23 feet.
More accurate data, rather than extrapolations, for the water table aquifer under the Property are not available partly due to Petitioners' refusal in 1984 to allow a County official to conduct field tests on the Property in order to determine the characteristics of the water table aquifer. The only field testing done in connection with the subject case was performed by Mr. Missimer, but was not available to the County until after it had adopted the Plan Amendments and thus was excluded.
In any event, the evidence does not establish to the exclusion of fair debate that the criteria of 30-foot aquifer thickness and transmissivity of at least 100,000 gallons per day per foot used in the Montgomery Study represent minimum requirements for wellfield development. In other words, the evidence fails to prove by the requisite standard that an area designated Density Reduction/Groundwater Resource for potential water table aquifer wellfield development must meet the Montgomery Study criteria or else the designation lacks support from the data and analysis.
Mr. Missimer also informed the County Commission during its March 27, 1990, public hearing on the Plan Amendments that the Montgomery Study omitted test data from five test wells located in northwest Lee County near the Property. It is unnecessary to determine whether these data met the screening requirements of the Montgomery Study and earlier studies or reports that also omitted these data. Even with the data from these five test wells, according to Mr. Missimer, the water table aquifer transmissivity on the Property would be extrapolated to 10,000-20,000 gallons per day per foot, except for a small area near US 41 with a maximum transmissivity of 25,000 gallons per day per foot.
The transmissivity values offered by Mr. Missimer are at the low end of the 20,000-40,000 gallons per day per foot values referenced in the Reconnaissance Report. Although the aquifer thickness of 18-23 feet is just below the 25-40 foot thickness stipulated in the Reconnaissance Report, the Reconnaissance Report, like the Montgomery Study, does not establish minimum standards from which a local government may not deviate without repudiating the prevailing data and analysis.
Petitioners have failed to prove to the exclusion of fair debate their key assertion--i.e., that the Plan Amendments are not based on relevant and appropriate data. Relative to other parts of Lee County, the three areas designated Density Reduction/Groundwater Recharge are the most suitable for the development of wellfields. The permitted low-density and -intensity land uses are entirely consistent with the protection of the potential of the area for wellfield development, while still allowing affected landowners reasonable use of their property. Although the entire County provides recharge to the water table aquifer, areas relatively undeveloped will allow more rainfall to enter the water table aquifer at the point where the rainfall falls rather than be lost to evapotranspiration or drainage improvements that accompany the installation of impervious surface.
Petitioners are trying to impose a higher degree of precision on the data and analysis than the data and analysis permit. Projections of aquifer thickness and transmissivity are not traffic counts. Setting "minimum" standards for these values, as an indication of an area's potential for wellfield development, is not as exact a process as calculating the volume- to- capacity ratios defining different levels of service on road segments.
The "minimum" standards on which Petitioners heavily rely are necessarily arbitrary to a certain extent, as conceded by the Montgomery Study. Equally important, the "minimum" standards for aquifer thickness and transmissivity are directly related to each other (e.g., a higher transmissivity may allow the use of a thinner aquifer). And the aquifer thickness is inversely related to the extent of land use restrictions imposed on areas in the cones of influence of water wells (i.e., stricter land use restrictions may allow the use of a thinner aquifer).
The Data and Analysis accompanying the Plan Amendments adequately respond to the underlying data and analysis, including the Four Studies. The salient facts are fairly simple. To meet increasing demand, Lee County must tap a wider range of its potable water resources. Lee County will very likely be forced to withdraw increasing amounts of water from the water table aquifer for the production of potable water. Despite low values for aquifer thickness and transmissivity (relative to ideal conditions), the Property has reasonable potential, under the circumstances, for the development of the water table aquifer, most likely through a decentralized system of smaller wells in order to protect wetlands and, by so doing, the water table aquifer itself. And it is vital that Lee County carefully regulate the densities and intensities permitted on the Property in order to protect the quality and quantity of water in the water table aquifer. The data and analysis, which are accurately summarized in the Data and Analysis accompanying the Plan Amendments, support the designation of the Property as Density Reduction/Groundwater Resource, as well as Resource Protection Areas and Transition Zones.
For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the data supporting the Plan Amendments were not collected and applied in a professionally acceptable manner, that the Plan Amendments are not based on the best available data, and that special studies forming part of the data and analysis did not use appropriate, clearly described methodologies or did not meet professionally accepted standards.
More data and more complex models can always yield more reliable results. But the evidence in this case establishes the validity of the data on which the County relied and the ensuing analysis in terms of the establishment of the Density Reduction/Groundwater Resource designation on the Property. The shortcomings of the Montgomery Study in particular were not material and, in any event, were far short of what Petitioners would have to show in order to determine that the study did not use appropriate methodologies or meet professionally acceptable standards or even that the Montgomery Study did not represent the best available existing data. Likewise, Lee County's use of the Four Studies was also appropriate.
To the extent that the sufficiency of the data and analysis submitted to DCA even provides a basis for determining that a plan or plan amendment is not in compliance, Petitioners have failed to prove to the exclusion of fair debate that DCA did not have sufficient data and analysis to determine whether the Plan Amendments were in compliance. The relevant Data and Analysis accompanying the Plan Amendments were derived from Dr. Gomberg's summation of the data and analysis, especially the Four Studies. The Data and Analysis were a fair, suitably detailed representation of the relevant findings and conclusions in the Four Studies. As such, the Data and Analysis gave DCA a reasonable opportunity to conduct a review of the materials and reach an informed compliance determination concerning the Plan Amendments or, where appropriate, the Amended Plan.
For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that Lee County did not have available for public inspection during the adoption proceedings copies of all data and analysis or that Lee County did not comply with all requirements of notice and public participation.
Petitioners have failed to prove to the exclusion of fair debate that the Amended Plan lacks a policy addressing implementation activities for the protection of environmentally sensitive lands. In the context of the present case and the relief sought by Petitioners, the above-cited provisions of the Amended Plan adequately address the protection of environmentally sensitive lands. The data and analysis make it clear that any significant drawdown of adjacent wetlands will deplete the water table aquifer at the most critical
time--during the winter dry months when seasonal demand is high. The provisions of the Amended Plan adequately address the threat to adjacent wetlands posed by the development of wellfields in the water table aquifer.
Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments cause the FLUM not to reflect the operative provisions of the Amended Plan. The FLUM clearly reflects that the Property is designated exclusively Density Reduction/Groundwater Resource and Resource Protection Areas and Transition Zones.
Petitioners have failed to prove to the exclusion of fair debate that the Amended Plan is internally inconsistent. Limiting residential densities to 1:10, FLUE Policy 1.4.3 also indicates, among other things, that "[l]and uses in [the Density Reduction/Groundwater Resource] areas must be compatible with maintaining surface and groundwater levels at their historic levels." Nothing in the policy implies that this requirement is suspended if and when the area is converted to potable water production. As a practical matter, the County cannot ignore the vital interrelationship between the water table aquifer and nearby wetlands without risking the destruction of the water table aquifer as a source of potable water.
Acknowledging the interrelationship between the water table aquifer and nearby wetlands, Conservation Element Objective 84.3 requires that land development "protect the values and functions of wetlands, and, to the maximum extent possible, avoid the drainage, filling, isolation, and excavation of wetlands." Conservation Element Policy 84.3.3 discourages access roads and land development in Resource Protection Areas and Transition Zones. These provisions are not frustrated by a designation of surrounding areas at a density of 1:10 with the possibility of wellfield development. Again, the long-term viability of any wellfield on the Property is dependent upon the preservation of prevailing wetland water elevations, as well as the maintenance of adequate natural recharge areas.
Community Facilities Element Objective 41.2 is for County staff to review technical data concerning groundwater recharge areas in Lee County and propose modifications to the FLUM as necessary to protect or improve areas of groundwater recharge. Community Facilities Element Policy 41.2.1 requires the County, based on the best available technical data, to designate areas for future potable water supply and to preclude incompatible land uses. Community Facilities Element Policy 41.2.2 merely identifies the new Density Reduction/Groundwater Resource designation, which shall be applied to "protect the county's groundwater resources and principal recharge areas." As discussed above, nothing in FLUE Policy 1.4.3 or the designation of the Property as Density Reduction/Groundwater Resource conflicts with the provisions of the Amended Plan set forth in this paragraph. The water table aquifer under the Property is the site of groundwater resources and the available recharge is relatively good given the undisturbed state of the land.
For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments, Amended Plan, or adoption process is inconsistent with Regional Plan Policies 8.B.3, 10.A.2, 10.A.3, 16.A.3.a, 16.A.3.c, 16.B.1.a, 25.C.2, 25.C.3, and 25.C.4. The cited provisions from the Regional Plan involve protecting various natural resources, such as wetlands and groundwater, planning for a mixture of land uses, and providing effective public participation in the planning process.
For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the State comprehensive plan provisions, which involve the protection of wetlands and protection and restoration of wetland systems.

CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) and 163.3184(9), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Participation as a party in a Section 163.3184(9) or (10) proceeding is limited to "affected persons" and DCA. In relevant part, Section 163.3184(1)(a) provides:

"Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that adoption of the plan as proposed would produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction.
Petitioners have standing.
The affected person in the Section 163.3184(9) proceeding must prove to the exclusion of fair debate that the plan or plan amendment is not consistent with the Act or Chapter 9J-5.
The Act does not define what is meant by "fairly debatable." In zoning cases, "'[t]he fairly debatable' test asks whether reasonable minds could differ as to the outcome of a hearing" (citations omitted). Norwood-Norland Homeowners' Association, Inc. v. Dade County, 511 So. 2d 1009, 1012 (Fla. 3d DCA 1987). The element of reasonableness imposes certain requirements upon the persons differing as to the outcome. The fairly debatable test requires that the persons reaching different conclusions are informed by relevant facts and law and are capable of analyzing this information in a reasonable manner in order to reach a logical conclusion based exclusively on the applicable facts and law.
Pursuant to Section 163.3184(1)(b), Petitioners are required to prove that the Plan is not "in compliance." Under Section 163.3184(1)(b): "'In compliance'" means consistent with the requirements of ss. 163.3177, 163.3178,
and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5 . . ., where such rule is not inconsistent with chapter 163, part II."
The Act defines what is meant by consistency with the state and regional plans. However, the Act does not define what is meant by internal consistency or consistency with the other criteria of the Act and Chapter 9J-5.
Section 163.3177(10)(a) defines "consistency" solely for the purpose of determining whether the plan is consistent with the state and regional plans. For these consistency determinations, the plan is consistent if it is "not in conflict with" the relevant plan and "take[s] action in the direction of realizing goals or policies" of the relevant plan. In making these determinations, the state or regional plan "shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan . . .." Id.
Section 163.3177(2) describes internal consistency as "coordination" among the several elements. Section 163.3177(9)(b) states that internal consistency also means that the elements are "related" to each other.
The statutory definition of consistency with state and regional plans must be modified when applied to questions of internal consistency. The "not in conflict with" portion of the definition is suitable. A future land use policy that conflicts with a conservation policy typically results in internal inconsistency.
However, the remainder of the statutory definition is not applicable to internal consistency determinations. There is no reason to insist that all objectives and policies of a plan "take action in the direction of realizing" the other objectives and policies of the same plan. Unlike the situation in which provisions of different plans are compared, an objective in the conservation element of a plan should not be required to take action in the direction of realizing an objective in the public facilities element of the same plan. Without furthering each other, the conservation objective or public facility objective may each pursue its respective goal. The meaningful question is whether the two objectives are in conflict with each other; if not, they are coordinated, related, and consistent.
One approach to determining consistency with the other criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "minimum criteria"0 language. Under this approach, the failure to satisfy any single requirement of Sections 163.3177 and 163.3178 or criterion of Chapter 9J-5 results in a finding of inconsistency.
Another approach to determining consistency with the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "consistency" language. Under this approach, the plan is first examined under the "minimum criteria" approach. If no criterion is left unsatisfied, then the plan is consistent with Sections 163.3177 and 163.3178 and Chapter 9J-5. If, as is often if not invariably the case, the plan fails to satisfy one or more of these criteria, further analysis must be undertaken before determining that the plan is not consistent with applicable statutory and regulatory criteria.
Borrowing the statutory definition of consistency as applied to comparisons with state and regional plans, the "consistency" approach would permit a finding of consistency if the plan as a whole were not in conflict with, and took action in the direction of, realizing the criteria unsatisfied by the plan. This approach would require, among other things, consideration of the purposes of the unsatisfied criteria in light of the entire plan, the Act, and Chapter 9J-5.
The "minimum criteria" approach is supported by several references in the Act and Chapter 9J-5 to these criteria as "minimum requirements" or "minimum criteria." See Sections 163.3161(7) and 163.3177(9) and Rule 9J-5.001, although Section 163.3177(9) also refers to "criteria" without the modifier, "minimum." Rule 9J-5.001 adds: "[a]s minimum criteria, these criteria are not intended to prohibit a local government from ... adopting . . . a ... plan which is more . .
. strict." The rule says nothing about adopting a plan less strict than the minimum criteria.
The "consistency" approach is supported by the language in the Act and Chapter 9J-5 that a plan must be "consistent with the requirements" of Sections 163.3177 and 163.3178 and Chapter 9J-5. Section 163.3184(1)(b). Similarly, Rule 9J-5.002(1) requires consistency merely with Sections 163.3177 and 163.3178 and Chapter 9J-5, and not with any "minimum criteria." If truly "minimum criteria," they should be "satisfied" or "met," but these terms are not used in the Act or Chapter 9J-5 with reference to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 with one exception inapplicable to the present case.0
In one instance, the Act expressly endorses more flexibility than exists in the "minimum criteria" approach. The determination whether the plan is consistent with the criteria requiring certain detailed data must, according to Rule 9J-5.002(1), be based on such factors as the government's "complexity, size, [and] growth rate." Expressly approving this rule, Section 163.3177(10)(i) provides:

[DCA] shall take into account the factors delineated in rule 9J-5.002(2) . . . as it ... applies the rule in specific situations with regard to the detail of the data and analysis required.
The language of the Act favors the "consistency" approach over the "minimum criteria" approach. The "consistency" approach derives its support from the critical provision of the Act defining "in compliance." By contrast, the "minimum criteria" approach derives its support from less operative sources within the Act--a legislative declaration0 and a legislative directive to DCA regarding rulemaking.0
Adopting the "consistency" approach may emphasize flexibility over predictability. However, the Act tacitly endorses similar flexibility in the determinations of consistency with the state and regional plans.
Under the "consistency" approach to Sections 163.3177 and 163.3178 and Chapter 9J-5, each unsatisfied criterion must be carefully considered to determine its function in light of the Act and Chapter 9J-5 as a whole. Then the relationship between the plan as a whole and the unsatisfied criterion, in light of its role within the Act and Chapter 9J-5, must be examined to determine whether, among other things, the plan conflicts with the unsatisfied criterion,
the plan takes action in the direction of realizing the unsatisfied criterion, and the plan is related to, coordinated with, and, ultimately, consistent with the unsatisfied criterion.
Among the general criteria of the Act and Chapter 9J- 5 is that the plan be supported by data and analysis. The Act states this general criterion at Section 163.3177(8)0 and (1).0
The Act also states:

It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data. [DCA] may utilize support data or summaries thereof to aid in its determination of compliance and consistency. The Legislature intends that [DCA] may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted. However, [DCA] shall not evaluate whether one accepted methodology is better than another. Chapter 9J-5, F.A.C., shall not be construed to require original data collection by local governments; however, local governments are not to be discouraged from utilizing original data so long as methodologies are professionally accepted.

Section 163.3177(10)(e).
Rule 9J-5.005(2)(a) provides: "All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents shall be based upon relevant and appropriate data."
Corresponding to provisions of the Act, Rule 9J- 5.005(2)(b) and (c) addresses the quality of data and the transmission of the data to DCA:
1. Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies.
2. Primary data sources such as United States Census reports, other government data documents, local computerized data, and original map sheets used to compile required maps need not be printed in their entirety within either the support documents or the comprehensive plan. Summaries of support documents shall be submitted to [DCA] along with the comprehensive plan at the time of compliance review to aid in [DCA's] determination of compliance and consistency. As a local alternative to providing data and analysis summaries, complete data and analyses sufficient to support the comprehensive plan may be submitted to [DCA] at the time of compliance review. [DCA] may require submission of the complete or more detailed data or analyses during its compliance review if, in the opinion of [DCA], the summaries are insufficient to determine compliance or consistency of the plan.
Any interpretation of the preceding provisions must take into account specific criteria of the Act and Chapter 9J-5 that require individual items of data or analysis.0
The meaning of the first clause of Section 163.3177(10)(e) does not render the above-described provisions unenforceable in plan litigation, or limit to DCA the enforcement of such provisions. The Act and Chapter 9J-5 clearly require specific data and analysis. The Act and Chapter 9J-5 clearly require that the plan generally be supported by data and analysis. The second clause of Section 163.3177(10)(e) restates the latter requirement that the plan must be "clearly based" on "appropriate data."
The proper interpretation of the first and second clauses of Section 1634.3177(10)(e) is that, with one exception, the primary consistency determination involving data and analysis is whether plan provisions are supported by data and analysis. The exception is that other consistency determinations may also involve data and analysis if the Act or Chapter 9J-5 establishes criteria of specific data or analysis. Examples of the exception are noted above, such as the land use and inventory map required by Section 163.3178(2)(b). Otherwise, data and analysis are not like operative plan provisions, which are subject to a wide range of specific and general consistency criteria, such as internal consistency, consistency with the state and regional plans, and economic feasibility.
The first clause of Section 163.3177(10)(e) reinforces the principle that, except for criteria of specific items of data or analysis, the focus of plan litigation involving data and analysis is on the operative provisions of the plan, not the data and analysis. If the operative provisions, such as the goals, objectives, policies, and future land use map, are supported by appropriate data and analysis, the general criterion is satisfied.
Chapter 9J-5 states that the plan must be supported by the "best available" data. The effect of the first clause of Section 163.3177(10)(e) is to acknowledge that any litigation concerning whether the data are the best available data must be tempered by the general principle that the data are not properly the subject of the compliance review process.
As in this case, the analysis and even the data are sometimes in conflict. Differences may exist among data without disqualifying any of such data as the "best available" data. Disputes are to be expected in the complex science of hydrogeology over an area as large as Lee County or even the Property. To some extent, reasonable but varying results may be generated by complicated formulas analyzing complex and voluminous data inputs; reasonable differences are even more likely in the analysis of such results.
The first clause of Section 163.3177(10)(e) takes into account the inevitable disorderliness that attends the recurring process by which data are collected, then analyzed, and the results of the analysis yield more data, which are then reanalyzed. The first clause of Section 163.3177(10)(e) discourages attempts to impose upon the dynamic process of data collection and analysis an unreasonable degree of precision.
Even after determining the role of data and analysis in Section 163.3184(9) and (10) litigation, two issues remain concerning what data and analysis a local government may use to show that operative plan provisions are supported by data and analysis or that the local government has addressed specific criteria, such as a land use and inventory map. First, must the data and analysis be in existence at the time of the adoption of the plan or plan
amendment? If so, must the local government be aware of, use, identify, or even submit such data and analysis (or summaries thereof) to DCA when transmitting the plan or plan amendment for review?
In this case, Petitioners have attempted to supply data in the form of field tests conducted by Mr. Missimer on the Property following the date of the adoption of the Plan Amendments. In other words, the proffered data were not in existence at the time of the adoption of the Plan Amendments. In other cases, local governments defending a plan or plan amendment may seek the same latitude to introduce data and analysis not in existence when the plan or plan amendment was adopted.
Emphasis upon the final product--the plan or plan amendment-- militates in favor of allowing it to be defended or challenged on the basis of data and analysis not in existence until after the plan or plan amendment was adopted. Emphasis upon the process by which the public participates in the planning effort and the local government attempts to discharge its planning obligations militates in favor of limiting the data or analysis upon which a plan or plan amendment may be challenged or defended to data and analysis in existence during the adoption process.
In determining whether operative plan provisions are supported by data and analysis or whether data and analysis are consistent with specific criteria, it is necessary to refer to "appropriate" data, as provided by Section 163.3177(10)(e), or the "best available existing data," as provided by Rule 9J- 5.005(2)(c).
The most reasonable reading of Rule 9J-5.005(2)(c) is that the data must be available and existing when the local government adopts the plan or plan amendment. These are the only data on which a local government may rely to show supporting data or consistency with a specific data criterion, or on which an affected person or DCA may rely to show the converse. In exceptional cases, the requirement of "available" may possibly establish an earlier cut-off for data that, although in existence, were for some reason unavailable to the local government at the time of adoption.
Consistent with the evidentiary rulings at the hearing, there is no corollary to the "existing" requirement with respect to analysis. The line between data and analysis is often obscured, as the product of earlier analysis is transformed into data upon which more analysis may be performed. However, it is sufficient for present purposes to note that analysis is an ongoing process that in large part characterizes what takes place during the Section 163.3184(9) or (10) hearing and in the orders that follow. It is not possible to freeze analysis at an arbitrary point. It is enough to ensure that no analysis is predicated upon data not in existence and available when the plan or plan amendment was adopted.
The extent to which a local government must identify in its plan, use, or even be aware of data or analysis at the time of the adoption of the plan or plan amendment raises similar issues as those involved as to whether a party may rely on new data. If an affected person may challenge a plan or plan amendment based on analysis and available existing data, even though the local government was unaware of such data and analysis at the time of adoption, then the local government may defend a plan challenge based on analysis and available existing data meeting the same standards, even though the local government was unaware of such data and analysis at the time of adoption. The same provisions of the Act and Chapter 9J-5 govern both parties.
On the one hand, allowing a local government or affected person to refer to analysis or existing data not in fact used while adopting the plan or plan amendment could tend to impair public participation. As noted above, Section 163.3177(8) requires the local government to make available to the public copies of "surveys and studies" used in the preparation of the plan or plan amendment. A local government that waits until the Section 163.3184(9) or
(10) proceeding to identify the data and analysis upon which the plan or plan amendment is based hardly serves the principles of public participation. Likewise, allowing an affected person to wait until the Section 163.3184(9) or
(10) proceeding to identify the data and analysis upon which the challenge is based serves the principles of public participation no better.
On the other hand, no real purpose is served by sustaining a challenge to a plan or plan amendment because the local government did not identify supporting data and analysis when submitting the plan for review to DCA, if analysis or existing data in fact are available to support the plan or plan amendment or to achieve consistency with a specific data or analysis criterion.
Rule 9J-5.005(2)(a) describes the process under which DCA reviews each plan or plan amendment to determine the consistency with the criteria involving data. Rule 9J-5.005(2)(d) implies that data should be submitted with the plan or plan amendment. Rule 9J-5.005(2)(d) requires the local government to submit summaries of support documents with the plan or plan amendment at the time of compliance review "to aid in [DCA's] determination of compliance and consistency." As an alternative, "complete data and analyses sufficient to support the comprehensive plan may be submitted to [DCA] at the time of compliance review." However, Rule 9J-5.005(2)(d) provides that DCA "may require submission of the complete or more detailed data or analyses during its compliance review if, in the opinion of [DCA], the summaries are insufficient to determine compliance or consistency of the plan."
However, even if local governments are allowed to produce supporting data and analysis for the first time during plan litigation, two practical reasons will discourage such a practice. First, DCA reviews each plan or plan amendment to determine whether operative provisions are supported by data and analysis and the data and analysis are consistent with specific criteria. The absence of such data and analysis increases the likelihood of plan litigation. Second, effective public participation may be denied by the failure of local government officials, at public hearings, to identify and discuss relevant data and analysis prior to the adoption of the plan or plan amendment.
However, there is insufficient authority in the Act or Chapter 9J-5 to render a plan or plan amendment inconsistent with the general criterion of supporting data and analysis or criteria concerning specific items of data or analysis if appropriate analysis and existing data are first disclosed at the final hearing.
Rule 9J-5.005(2)(a) also sets forth the criterion that "the data [shall be] collected and applied in a professionally acceptable manner." Rule 9J-5.005(1)(c) states the criterion that "[a]ll background data, studies, surveys, analyses and inventory not adopted as part of the comprehensive plan shall be available for public inspection while the comprehensive plan is being considered for adoption and while it is in effect.
Rule 9J-5.004(2)(a) sets forth the criterion that public participation procedures shall assure that real property owners are put on notice, through advertisement in a newspaper of general circulation or other appropriate means, of official actions that will affect the use of their property. Rule 9J- 5.004(2)(b) and (e) states the criteria that public participation procedures shall provide for notice to keep the general public informed and assure the consideration of and response to public comments.
Rule 9J-5.006(3)(c)6 sets forth the criterion of one or more policies addressing implementation activities for the "[p]rotection of potable water well fields, and environmentally sensitive land."
Rule 9J-5.005(5)(b) sets forth the general criterion that the future land use map must be internally consistent with the operative provisions of a plan. Rule 9J-5.005(5)(a) states the general criterion that a plan be internally consistent.
For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate or even by a preponderance of the evidence that the Plan Amendments, Amended Plan, Data and Analysis, or subject adoption process and public participation are inconsistent with any of the above-described criteria.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Administration Commission enter a final order dismissing the Amended Petition of Petitioners.

ENTERED on December 16, 1992, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on December 16, 1992.

ENDNOTES

1/ The Act refers to "requirements," and Chapter 9J-5 refers to "criteria." As used in the Act and Chapter 9J-5, the two words are synonymous. For simplicity, all references in this Recommended Order to "criteria" or "minimum criteria" include "requirements" or "minimum requirements," as used in the Act.

2/ Rule 9J-5.0055 uses the word "satisfy" four times and the word "met" three times. This rule deals with the critical issue of concurrency.

3/ 163.3161(7).

4/ 163.3171(9).

5/ 163.3177(8) reads in its entirety:

All elements of the comprehensive plan, whether mandatory or optional, shall be based upon data appropriate to the element involved. Surveys and studies utilized in the preparation of the comprehensive plan shall not be deemed a part of the comprehensive plan unless adopted as part of it. Copies of such studies, surveys, and supporting documents shall be made available to public inspection, and copies of such plans shall be made available to the public upon payment of reasonable charges for reproduction.

6/ 163.3177(1) states in its entirety:

The comprehensive plan shall consist of materials in such descriptive form, written or graphic, as may be appropriate to the prescription of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.

7/ For instance, Section 163.3177(6)(a) requires that the future land use element be:

based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; and the need for redevelopment, including the renewal of blighted areas and elimination of nonconforming uses which are inconsistent with the character of the community.

Section 163.3177(6)(c) requires the public facilities element to: describe the problems and needs and the general facilities that will be

required for solution of the problems and needs. The element shall also include a topographic map depicting any areas adopted by a regional water management district as prime groundwater recharge areas for the Floridan or Biscayne aquifers ....

Section 163.3177(6)(d) requires local governments, in connection with the conservation element, to "assess their current, as well as projected, water needs and sources for a 10- year period."

Section 163.3178(2) requires that coastal management elements be "based on studies, surveys, and data ...." The element must contain a "land use and inventory map of existing coastal uses," "analysis of the environmental, socioeconomic, and fiscal impact of development and redevelopment proposed in the future land use plan. . . on the natural and historic resources of the coast

. . .," and "analysis of the effects of existing drainage systems and the impact of point source and nonpoint source pollution on estuarine water "

Rule 9J-5.006(1) requires that a future land use element be based upon various data, and Rule 9J-5.006(2) requires that a future land use element be based upon various analyses. Rule 9J- 5.007(1) and (2) contain the criteria for data and analysis, respectively, for the traffic circulation element. Similar subsections of other rules identify criteria of data and analysis with respect to other plan elements.

8/ Two similar reasons will discourage affected persons from waiting to produce data and analysis until plan litigation has begun. First, if DCA obtains the competing data and analysis prior to issuing the notice of intent, the chances may improve that DCA will challenge the plan and the issue of data and analysis may be resolved under the preponderance standard. Second, an affected person who withholds data and analysis from the local government may find it more

difficult to prove that the ensuing plan is inconsistent with the public participation criteria, at least with respect to the local government's consideration of data and analysis.

APPENDIX

Treatment Accorded Proposed Findings of Petitioners

Adopted or adopted in substance: 1-5; 10; 14; 16 (second sentence);

27; 44; 49; 54-56; 75-76; 82-86; 88-90; 94- 95; 97-98; 102; 107 (first

sentence); 109 (first sentence); 114 (except as to implication that this is overall conclusion of the Reconnaissance Report); 117; 121 (although the Montgomery Study does not entirely supersede the Reconnaissance Report); 123; 126 (except last sentence); 128-33; 139-40; 148-49; 152; 154 (first sentence); 156 (first two sentences); 157-61; 167 (only to extent of the existence of flaws, not all cited); 168; 169 (if "sole criterion" refers to one of four required criteria in Montgomery Study); 170; 172 (second sentence);

220 (third sentence; cost and resource availability are interrelated); 238;

239 (as to certain good recharge areas); 243 (except last sentence); 251 (first sentence); 266; 268 (first sentence); 269; 271-73; 277-79; and 284.

Rejected as irrelevant: 6-8; 11-13; 15-16 (first sentence); 87 (in terms of specificity of required consideration and response); 126 (last sentence); 185; and 252.

Rejected as legal argument: 9; 230; and 319-20.

Rejected as subordinate: 16 (last sentence); 17-26; 28-43; 45-48; 50-

52; 57-74; 77-81; 91-93; 96; 99-101; 107 (second sentence); 108 (second sentence); 109 (except first sentence); 115-16; 118-19 (except last sentence); 120-21; 122; 124-25; 134-38; 141-47; 150-51; 153; 162-66; 174-80; 184;

206-09; 214-20 (first sentence); 221-28; 232; 234 (second sentence); 242;

244; 247-50; 251 (except first sentence); 255-64; 267; 275-76; 282-83

(first sentence); 286-06; and 308-18.

Rejected as unsupported by the appropriate weight of the evidence: 53; 106; 108 (first sentence); 110; 111 (the Hole Montes Study forms part of the best available existing data, although the Montgomery Study is more recent and relevant to the subject case); 112; 113 (as to implication that the Reconnaissance Report is any more preliminary than any hydrogeological investigation of Lee County's groundwater resources); 119 (last sentence); 127; 154 (second sentence); 155; 156 (third sentence); 181-83; 186; 205;

210-13; 220 (second sentence); 229; 231 (Although not outcome determinative, Policy 1.4.3 is interpreted as extending the Density Reduction/Groundwater Resource designation to "include" [but not be limited to] upland areas providing substantial recharge to aquifers most suitable for future wellfield development, but also areas that are the most favorable locations for the physical withdrawal of water from those aquifers. If "[t]hese areas" at the beginning of the second sentence of Policy

1.4.3 refers to Density Reduction/Groundwater Resource "areas," as the abovesigned determines, rather than "upland areas," then, obviously, the recharge/potential wellfield criteria are disjunctive, not conjunctive.); 233 (false premise); 234 (first sentence); 235-37; 240; 241 (as to significance of inclusion on Plate 79); 243 (last sentence); 245; 246; 253-54; 265; 268 (second sentence); 270; 274; 280-81; 283 (second sentence); 285; 285;

307; 321; 329; 334; 345-46; 350; and 354 (as is the case for all criteria, the test is whether the Amended Plan, Plan Amendments, or, here, public participation is "consistent" with the applicable criteria; strict satisfaction of each criterion is not required for the reasons set forth in the Conclusions of Law).

Rejected as unnecessary: 171-72 (first sentence) and 173 (due to adoption of Missimer testimony on aquifer thickness and transmissivity); 187-204; and 327-28.

Rejected as repetitious: 322-26; 330-33; 335-44; 347 ("not inconsistent" in first sentence treated as "inconsistent"); 348- 49; 351-53; and 355-60.

Treatment Accorded Proposed Findings of Lee County

Adopted or adopted in substance: 1; 6-7; 12-17; 19-21; 23- 26; 29-30;

31 (substituting "reasonable inference" for "guess"); 32-33; 35-36; 39-42 (first sentence); 43-46; 49- 50 (first sentence); 51-54; 70-71; 94-95; 98- 99; 106-07; 109-12; and 114-29.

Rejected as subordinate: 2-5; 8-11; 18; 22; 34; 55-69; 88- 93; 96-

97; and 100.

Rejected as unsupported by the appropriate weight of the evidence: 27-28;

42 (except for first sentence, although extrapolation in general is professionally acceptable practice); and 47-49.

Rejected as irrelevant: 37-38; 50 (except first sentence); and 108. Rejected as unnecessary: 72-87 and 113.

Rejected as legal argument: 101-05. Treatment Accorded Proposed Findings of DCA

Adopted or adopted in substance: 1-3; 6; 8-11; 13; 14 (except as to study area, which, north of the Caloosahatchee River, was east of US 41); 16- 20; 22-26; 28-35; 38; 39

(second sentence); 40-41; 45-48; and 54-57.

Rejected as subordinate: 4-5; 7; 12; 21; and 36.

Rejected as unsupported by the appropriate weight of the evidence: 15 (as to location of study area and reasonableness of extrapolation); and 27 (as to "established").

Rejected as legal argument: 37; 39 (first sentence); 42-44; and 51.

Rejected as unnecessary: 49-50 and 52-53. The Act refers to "requirements," and Chapter 9J-5 refers to "criteria." As used in the Act and Chapter 9J-5, the two words are synonymous. For simplicity, all references in this Recommended Order to "criteria" or "minimum criteria" include "requirements" or "minimum requirements," as used in the Act. Rule 9J-5.0055

uses the word "satisfy" four times and the word "met" three times. This rule deals with the critical issue of concurrency. 163.3161(7). 163.3171(9).

163.3177(8) reads in its entirety:

COPIES FURNISHED:

Linda Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

Michael Donaldson Assistant General Counsel 2740 Centerview Drive

Tallahassee, FL 32399-2100

Kenneth G. Oertel Scott Shirley

Oertel, Hoffman, Fernandez & Cole, P.A.

P.O. Box 6507

Tallahassee, FL 32314-6507

Elizabeth C. Bowman David Powell

Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, FL 32314

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS

SYLVAN ZEMEL, individually and as Trustee, et al.,

Petitioner,

DOAH Case No. 90-7793GM

vs. Final Order No: DCA93-154-FOF-CP

LEE COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS,

Respondents.

FINAL ORDER

This case arose as a result of the implementation of a settlement agreement in DOAH Case 89-1843. Case 89-1843 was commenced when the Department of Community Affairs (the Department) found the original Lee County comprehensive plan not "in compliance" with Chapter 163, Part II (the Act), and Chapter 9J-5,

At one point, case 89-1843 appeared to be resolved by a settlement agreement between the Department, Lee County, and certain intervenors who are not parties to this case. The settlement agreement called for Lee County to adopt certain amendments to its local comprehensive plan which were necessary to bring the comprehensive plan into compliance. Lee County did adopt amendments to its comprehensive plan, and the Department found these Plan Amendments to be in compliance, and consistent with the settlement agreement.

The Petitioner in this case (Zemel) was not a party to case #89-1843 (challenging the original plan) or to the settlement agreement. Zemel commenced the instant case and alleged that the Plan Amendments are not in compliance with the Act and Chapter 9J-5, F.A.C.

The Recommended Order issued by the Division of Administrative Hearings recommended that the Department of Community Affairs determine that the Plan Amendments are in compliance, and enter a final order dismissing the Amended Petition. Zemel filed many exceptions to the Recommended Order.

Section 120.57(1)(b)10., Fla. Stat. (1991), of the Administrative Procedure Act, provides, in part:

The agency in its final order may reject or modify the conclusions of law and inter- pretation of administrative rules in the recommended order, but may not reject or modify the findings of fact 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 the essential requirements of law.

The Department can reject findings of fact in the Recommended Order only if those findings of fact are not supported by competent substantial evidence.
However, the Department may accept the findings of fact in the Recommended Order, 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); Jacob v. School Board of Lee County, 519 So.2d 1002 (Fla. 2d DCA 1988); Bustillo v. Department of Professional Regulation, 561 So.2d 610 (Fla. 3d DCA 1990).

The hearing officer's legal conclusions, as opposed to factual determinations, come to the agency with no equivalent presumption of correctness. Instead, the final decision as to the applicable law rests with the agency, subject, of course, to judicial review.
Manasota 88, Inc. v. Tremor, 545 So.2d 439,
441 (Fla. 2d DCA 1989).

Zemel commenced the 83 pages of Exceptions by stating four General Exceptions.

General Exception A.

Zemel takes exception to the discussion in the Recommended Order regarding all three large areas designated as Groundwater Resource areas. Since the Petition dealt solely with the designation of the Zemel property, Zemel alleges that the discussion of the other two large areas was irrelevant. The Department finds that the discussion in the Recommended Order concerning the other two large areas was necessary and useful, since most of the reports discussed in the Recommended Order covered the entire County, and since the thrust of the planning effort was to find the best areas for aquifer protection.

General Exception A is denied.

General Exceptions B, C and D, and Specific Exceptions 1 through 70.

These Exceptions attempt to reargue the evidence presented to the Hearing Officer. It is the Hearing Officer's task to

...consider all the evidence, resolve conflicts, judge credibility of the witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based upon competent substantial evidence. Heifetz v.
Dept. of Business Regulation, 475 So.2d 1281 (Fla. 1s DCA 1985).
Many of the Exceptions do not claim that the disputed findings of fact are not supported by competent substantial evidence. Those Exceptions which do claim that the disputed finding of fact is unsupported are clearly incorrect.
Further, the Department is not at liberty to adopt new findings of fact which were rejected by the Hearing Officer. Heifetz, supra. The Department may not re- evaluate the evidence in the manner suggested by Zemel.

General Exceptions B, C, and D and Specific Exceptions 1 through 60 are denied.

Specific Exceptions 71, 73, 74, 78, 79, 80, 82, 83, 84, 85, and 86.

Specific Exceptions 71, 73, 74, 78, 79, 80, 82, 83, 84, 85, and 86 object to the conclusions of law section of the Recommended Order, but are really further attempts to reargue the evidence presented to the Hearing Officer. For the reasons stated above, these exceptions are denied.

Exception 72.

Zemel correctly points out that Conclusion of Law 125 cites Rule 9J- 5.005(2)(b) & (c), but quotes paragraphs (c) and (d). Conclusion of Law 125 is amended to read: "Corresponding to provisions of the Act, Rule 9J-5.005(2)(c) and (d) addresses..."

The Department declines to modify the Conclusion of Law as suggested in the remainder of exception 72.

Exceptions 75 and 76.

The Hearing Officer did not allow Zemel to introduce data or analysis at the final hearing which had been gathered after the date of adoption of the Plan Amendments. As the Hearing Officer stated,

Emphasis upon the final product -- the plan or plan amendment -- militates in favor of allowing it to be defended or challenged on the basis of data and analysis not in existence until after the plan or plan amendment was adopted. Emphasis upon the process by which the public participates in the planning effort and the local government
attempts to discharge its planning obligations militates in favor of limiting the data or analysis upon which a plan or plan amendment may be challenged or defended to data and analysis in existence during the adoption process. [CL 135.]

The Hearing Officer concluded that the directions in Subsection 163.3177(10)(e) to use "appropriate" data, and in Rule 9J- 5.005(2)(c) to use the "best available data", indicate that the data must be available and existing when the local government adopts the plan or plan amendment.

Zemel concedes that Rule 9J-5.005(2)(c) proscribes the admission of post- gathered data for the purpose of determining whether the local government used the "best available existing data." However, Zemel argues that data not in existence at the time of plan amendment adoption is admissible to attack the
data that was used by the local government on the basis that it was not collected or applied in a professionally accepted manner. Specifically, Zemel contends that the new data demonstrates that the County should have conducted further testing before reaching any conclusions based on the existing data [See Zemel Exceptions, p 59.]

The Department's authority to review data and analysis is restricted compared to the Department's authority to review the comprehensive plan. Environmental Coalition of Florida, Inc. v. Broward County, 586 So.2d 1212 (Fla. 1s DCA 1991).

It is the Legislature's intent that
support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and
policies be clearly based on appropriate data. The department may utilize support data or summaries thereof to aid in its determination of compliance and consistency. The Legisla- ture intends that the department may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted.
However, the department shall not evaluate whether one accepted methodology is better than another. Chapter 9J-5, F.A.C. shall not be construed to require original data collection by local governments; however, local governments are not to be discouraged from utilizing original data so long as methodologies are professionally accepted. Subsection 163.3177(10)(e), Fla. Stat.

The Department's Rule Chapter 9J-5, F.A.C., entitled "Minimum Criteria for Review of Local Government Comprehensive Plans and Determination of Compliance," does not, of course, expand the authority conferred on the Department by the Growth Management Act. Subsection 9J-5.005(2), F.A.C., "Data and Analyses Requirements" provides that,
1. All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support docu- ments shall be based upon relevant and appropriate data. Data or summaries thereof shall not be subject to the compliance
  review process. However, the Department will review each comprehensive plan for the purpose of determining whether the plan is based upon the data described in this Chapter and whether the data were collected in a professionally acceptable manner. All tables, charts, graphs, maps, figures, and data sources, and their limitations shall be clearly described where such data occur in the above (see 9J- 5.005(1)(c)) documents.
  
  was
2. This Chapter shall not be construed to require original data collection by local government; however, local governments are encouraged to utilize any original data necessary to update or refine the local government comprehensive plan data base so long as methodologies are professionally accepted.
3. Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies.
  The data shall be the best available existing data or special studies, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies.
  
  The Hearing Officer determined that the data actually used by Lee County
  
  ...prepared by qualified persons with appro- priate areas of expertise, including hydrogeology. The Four Studies meet all relevant professional standards, as do the methodologies employed in connection with investigations conducted as part of the Four Studies. [FF 79]
  
  The data used by Lee County for the Plan Amendments was collected and
  applied in a professionally acceptable manner. Zemel cannot use later-collected data to demonstrate that the County should have collected new data.
  
  Exceptions 75 and 76 are denied.
  
  Exception 81.
  
  Zemel contends that the Plan Amendments should be found not in compliance because Lee County failed to allow public participation as required by Rule 9J- 5.004(2). Zemel argues that the public hearings held by the County were merely "window dressing," since the County adopted amendments in conformance with a settlement agreement executed several months previously.
  
  The settlement agreement did not require the County to adopt the Plan Amendments. The agreement stated that, "Nothing contained in this agreement shall obligate the Board of County Commissioners of Lee County, Florida, to approve any proposed action." [Petitioner's Exhibit 218, page 4] The agreement contemplated the possibility that the County would not adopt the Plan Amendments. [Petitioners Exhibit 218, page 10]
  The Hearing Officer found:
  
  As part of the amendment process, there were two meetings of the local planning agency, which were properly noticed by newspaper publication. As required,
  notice of the transmittal hearing of March 3, 1990 was also published. The two adoption hearings, which were held on September 6 and 12, 1990, were also properly noticed by newspaper publication. County representatives generally considered all comments and responded to many comments, including some
  but not all of the comments made on behalf of Petitioners. [FF 6.]
  
  Exception 81 is denied.
  
  Exception 87.
  
  Subsection 163.3184(9), Fla. Stat. (1991), provides that if the Department issues an "in compliance" notice of intent, "...the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." On the other hand, subsection 163.3184(10), Fla. Stat. (1991), provides that if the Department issues a "not in compliance" notice of intent, "(t)he 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."
  
  In the Amended Petition, Zemel alleged that the Department did not properly review the Plan Amendments as required by Subsection 163.3184(1)(b), and Rule
  9J-5.005(2)(a), F.A.C. Therefore, Zemel argues that the Department has not made a "proper determination" that the Plan Amendments are in compliance. Zemel contends that, absent such a proper determination, Zemel was entitled to the preponderance of the evidence standard of proof, rather than the fairly debatable standard of proof used by the Hearing Officer.
  
  However, the language of the statute does not support the outcome proposed by Zemel. The statute prescribes a particular standard of proof based upon the issuance of a notice of intent to find the plan or amendment in compliance or not. The statutory prescription is not based on whether the plan or the amendment actually is or is not in compliance, or whether the Department is correct.
  
  The decision of the legislature to apply different standards of proof in different procedural situations is logical. If both of the governmental agencies charged with the implementation of the Act agree that a plan amendment is in compliance with the Act, it is reasonable to apply a fairly debatable standard to any challengers. However, if those two governmental agencies disagree on whether a plan amendment is in compliance with the Act, it is reasonable to resolve that disagreement based upon the preponderance of the evidence standard of proof.
  
  Exception 87 is denied.
  Exception 88.
  
  Exception 88 correctly points out that there is no basis for the dismissal of the Amended Petition. To that extent, exception 88 is granted.
  
  WHEREFORE, the Department of Community Affairs adopts the Hearing Officer's Recommended Order, with the following amendments, and issues this Final Order determining that the Plan Amendments are in compliance.
  1. Conclusion of Law 125 is amended to read: "Corresponding to provisions of the Act, Rule 9J- 5.005(2)(c) and (d) addresses..."

DONE AND ORDERED in Tallahassee, Florida, this 22nd day of June, 1993.

LINDA LOOMIS SHELLEY, Secretary

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

ANY PARTY TO THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW OF THE ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, BY THE FILING OF A NOTICE OF APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE WITH THE AGENCY CLERK, 2740 CENTERVIEW DRIVE, TALLAHASSEE, FLORIDA 32399-2100, AND BY FILING A COPY OF THE NOTICE OF APPEAL, ACCOMPANIED BY THE APPLICABLE FILING FEES, WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK.

copies furnished to:

Elizabeth Bowman, Esquire Charles L. Siemon, Esquire Kenneth G. Oertel, Esquire William M. Powell, Esquire Timothy Jones, Esquire Jacqueline Hubbard, Esquire Michael Donaldson, Esquire Robin Hassler, Esquire Thomas W. Reese, Esquire Ray Pavelka

Richard Grosso, Esquire

FILING AND ACKNOWLEDGEMENT

FILED, on this date, with the designated Department Clerk, receipt of which is hereby acknowledged.

Jane R. Bass 6/22/93

Department Clerk Date

Docket for Case No: 90-007793GM

Issue Date	Proceedings
Jun. 23, 1993	Final Order filed.
Dec. 16, 1992	Recommended Order sent out. CASE CLOSED. Hearing held January 13-17, 1992 and March 2-4, 1992.
Oct. 30, 1992	Notice of Substitution and Appearance of Counsel For Lee County filed. (From Timothy Jones)
Jul. 02, 1992	(Respondent) Request for Official Recognition filed.
Jun. 29, 1992	Lee County's Proposed Recommended Order filed.
Jun. 29, 1992	Department of Community Affairs Proposed Findings of Fact, Conclusions of Law and Recommended Order filed.
Jun. 29, 1992	Petitioners' Zemel, Et AL., Motion to Amend Transcript w/Petitioners Zemel, Et AL.'s, Proposed Recommended Order filed.
Jun. 09, 1992	Order sent out. (motion granted)
Jun. 08, 1992	Department of Community Affairs Motion to Extend Time for Filing of Proposed Recommended Order filed.
May 07, 1992	CC Letter to Scott Shirley et al from Elizabeth C. Bowman (re: remaining volumes of transcript) filed.
May 04, 1992	Transcript of Proceedings (Volumes I - VI); & Cover Letter to REM from K. Nolen filed.
Apr. 22, 1992	Transcript filed. (vols 7-11)
Mar. 31, 1992	Order Granting Motion for Extnesion of Time sent out. (motion for extension of time is granted for a period of 2 weeks from the date of this order)
Mar. 27, 1992	(Petitioenrs) Motion for Extension of Time filed.
Mar. 06, 1992	(Lee County) Notice of Filing Exhibits filed. (From Scott Shirley)
Mar. 02, 1992	CASE STATUS: Hearing Held.
Feb. 28, 1992	Petitioners' Zemel, et al., Notice of Filing Exhibit 431 filed.
Feb. 28, 1992	Petitioners' Zemel, et al., Notice of Filing Exhibit 431; Petitioner's Exhibit 431 (two white three ring binders, tagged) filed.
Feb. 27, 1992	Petitioners' Notice of Filing Service Return Affidavits for SubpoenasDuces Tecum w/attached Subpoenas filed.
Feb. 26, 1992	Petitioners' Notice of Filing Service Return ASffidavits afor Supbs. DT filed.
Jan. 10, 1992	Letter to Elizabeth C. Bowman from Michael P. Donaldson (re: Subpoenas Duces Tecum served on Bob Nave, Paul Noll, Carmen Bishop, Walker Banning and Robert Pennock) filed.
Jan. 07, 1992	Page 4 of Prehearing Stipulation filed. (From Carol w/Oertel & Hoffman et al)
Jan. 07, 1992	(Petitioner) Notice of Filing Executed First Amended Petition for Administrative Hearing Sylvan Zemel, As Trustee w/First Amended Petition for Administrative Hearing of Sylvan Zemel, As Trustee, ET AL & Exhibits A-G filed.
Jan. 07, 1992	Petitioners' Notice of Filing Service Return Affidavits for SubpoenasDuces Tecum w/(10) Subpoena Duces Tecum filed.
Jan. 07, 1992	Lee County's and The Department of Community Affairs' Prehearing Stipulation filed.
Jan. 06, 1992	cc: Cover Letter to K. Oertel from D. Powell; Zemel's Express Objections to Exhibits Produced by County filed.
Jan. 06, 1992	Unilateral Proposed Prehearing Stipulation of Petitioners Sylvan Zemel, As Trustee, ET AL filed. (From David Powell)
Jan. 06, 1992	Lee County's and the Department of Community Affairs Prehearing Stipulation (Draft/Unsigned); cc: Cover Letter to E. Bowman from S. Shirleyfiled.
Jan. 03, 1992	Letter to Kenneth G. Oertel et al from Elizabeth C. Bowman (re: DCA'sprehearing stipulation meeting and exhibit exchange) filed.
Jan. 03, 1992	cc: Letter to S. Shirley from E. Bowman (re: expert witness) filed.
Jan. 03, 1992	cc: Letter to S. Shirley from D. Powell (re: Documents from D. Depew Deposition) filed.
Dec. 31, 1991	cc: Letter to E. Bowman from S. Shirley (re: witness) filed.
Dec. 30, 1991	(Lee County) Amended Notice of Taking Deposition Duces Tecum filed.
Dec. 26, 1991	CC Letter to Michael P. Donaldson from David L. Powell (re: parties have agreed to defer the inspection of exhibits proposed for final hearing) filed.
Dec. 23, 1991	Notice of Taking Deposition Duces Tecum filed. (From Scott Shirley)
Dec. 23, 1991	Letter to REM from Gregory S. Hagen (re: room reservations) filed.
Dec. 23, 1991	CC Letter to Michael P. Donaldson et al from Elizabeth C. Bowman (re:Discovery & Prehearing Stipulation) filed.
Dec. 20, 1991	(Respondent) Response to Motion For Official Recognition w/Motion ForOfficial Recognition filed.
Dec. 17, 1991	Exhibit-6 w/cover ltr filed. (From David Powell)
Dec. 13, 1991	Order Granting Motion for Leave to Amend Petition for Administrative Hearing sent out.
Dec. 13, 1991	Lee County's Response to Motion for Leave to Amend Petition for Administrative Hearing filed.
Dec. 09, 1991	(Petitioner) Motion For Official Recognition w/(one TAGGED Box of Exhibits) filed. (From David L. Powell)
Dec. 06, 1991	Notice of Service of Answers to Sylvan Zemel. ET AL.'s Third Set of Interrogatories to Lee County; Lee County's Resposne to Motion to Reconsolidate Cases filed.
Dec. 06, 1991	Notice of Taking Deposition filed. (From David L. Powell)
Dec. 05, 1991	(Lee County) Notice of Taking Deposition Duces Tecum filed.
Dec. 04, 1991	Petitioners' Zemel Et Al. Notice of Taking Deposition Duces Tecum filed.
Dec. 03, 1991	Petitioners's Motion For Leave to Amend Petition For Administrative Hearing; First Amended Petition For Administrative Hearing of Sylvan Zemel, As Trustee, ET AL w/Exhibits A-G filed.
Nov. 20, 1991	(DCA) Notice of Service of Answers to Sylvan Zemel's Second Set of Interrogatories filed.
Nov. 12, 1991	Zemel's Objection to Interrogatories; Notice of Service of Answers toLee County's Second Set of Interrogatories to Sylvan Zemel, Individually and as Trustee, and The Other Petitioners in Case No. 9-7793GM & cover ltr filed.
Nov. 12, 1991	Zemel's Response to the Motion to Reconsolidate Cases and Jointly SetCases for Final Hearing by Responsible Growth Management Coalition, Inc., Committee of the Islands, Inc., Donna Buhl and Brenda Sheridan w/Exhibit-A filed.
Nov. 04, 1991	Petitioners' Response to Respondent Lee County's Second Request for Production of Documents filed.
Nov. 04, 1991	Petitioners' Response to Respondent Lee County's Request for Admissions to Sylvan Zemel, ET AL filed.
Oct. 29, 1991	Amended Notice of Service of Addendum to Answers to Sylvan Zemel, ET AL.'S Second Set of Interrogatories to Lee County filed. (From Scott Shirley)
Oct. 17, 1991	Notice of Service of Addeendum to Answers to Sylvan Zemel's ET AL's Second Set of Interrogatories to Lee County filed. (From Scott Shirley)
Oct. 16, 1991	(Petitioners) Notice of Service (2); Zemel's Second Set of Interrogatories to the Department of Community Affairs; Zemel's Third Set of Interrogatories to Lee County filed.
Oct. 11, 1991	Notice of Service of Interrogatories filed. (From Scott Shirley)
Oct. 03, 1991	Respondent, Lee County's, Request for Admissions to Sylvan Zemel, Et Al; Respondent Lee County's Second Request for Production Documents filed.
Sep. 11, 1991	Amended Notice of Hearing (As to Issues) sent out. (hearing set for January 13-17, 1992: 10:00 am: Fort Myers)
Sep. 06, 1991	Letter to REM from Elizabeth Bowman (re: Amended Notice of Hearing) filed.
Aug. 30, 1991	Amended Notice of Hearing sent out. (hearing set for Jan 13-17, 1992;10:00am; Ft Myers).
Aug. 14, 1991	Amended Notice of Hearing sent out. (hearing set for Jan 13-17, 1991;10:00am; Fort Myers)
Aug. 13, 1991	Respondent Sylvan Zemel, individually and as trustee, ET AL.'s response to the responsible growth management coalition, inc.'s and the committee of the islands, inc.'s motion to partially vacate stay(with exhibit A & B attached) filed.
Aug. 12, 1991	Lee County's Response to Zemel's Motion For Rehearing filed. (From Kenneth G. Oertel)
Aug. 08, 1991	Petitioner Zemel, Individually and As Trustee, Et Al.'S Motion For Rehearing of Amended Notice of Hearing w/Joint Response to Order to Provide Hearing Dates filed. (From David L. Powell)
Aug. 01, 1991	Prehearing Order sent out.
Aug. 01, 1991	Amended Notice of Hearing sent out. (hearing set for Nov. 4-8, 1991; 10:00am; Ft Myers).
Jul. 25, 1991	Joint Response to Order to Provide Hearing Dates filed. (From Elizabeth C. Bowman)
Jul. 17, 1991	Order Severing DOAH Case No. 90-7793GM from DOAH Case No. 90-7791GM and Requiring Parties to Provide Hearing Dates sent out.
Jul. 15, 1991	Letter to Mr. Meale from E.C. Bowman Attorneys for Petitioners filed.
Jun. 12, 1991	Order on Motion for Continuance (hearing set for July 16-19, 1991; 9:00am) sent out. (90-7791GM & 90-7793GM are severed from 89-1843GM & 90-7792GM)
Dec. 19, 1990	Order of Consolidation sent out. Consolidated case are: 89-1843, 90-7791, 90-7792 and 90-7793
Dec. 14, 1990	PPF's sent out.
Dec. 10, 1990	Agency referral letter; Petition for Administrative Hearing; Stipulated Settlement Agreement, other supporting documents attached filed.

Orders for Case No: 90-007793GM

Issue Date	Document	Summary
Jun. 22, 1993	Agency Final Order
Dec. 16, 1992	Recommended Order	Plan amendments redesignating land as groundwater resource supported by data and analysis.

Source: Florida - Division of Administrative Hearings

SYLVAN ZEMEL, INDIVIDUALLY AND AS TRUSTEE, ET AL. vs LEE COUNTY AND DEPARTMENT OF COMMUNITY AFFAIRS, 90-007793GM (1990)

Docket for Case No: 90-007793GM

Orders for Case No: 90-007793GM

Jeff Goodman

Michael Scott Shirley

Timothy Jones

Timothy Jones

Kenneth G Oertel

Gregory Stewart Hagen

David L Powell

Michael O Donaldson

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SYLVAN ZEMEL, INDIVIDUALLY AND AS TRUSTEE, ET AL. vs LEE COUNTY AND DEPARTMENT OF COMMUNITY AFFAIRS, 90-007793GM (1990)

Docket for Case No: 90-007793GM

Orders for Case No: 90-007793GM

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