STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRY and RACHEL COOPER, )

GLENN and NANCY BERNS, )

JACK and DOROTHY KAELBER, )

and WIL IDSTEN, )

)

Petitioners, )

)

vs. ) CASE NO. 90-8189GM

) CITY OF ST. PETERSBURG BEACH ) and DEPARTMENT OF COMMUNITY ) AFFAIRS, )

)

Respondent. )

) DONNA MCCOMB, KIMBERLY FOLTZ, ) and IRENE L. ZEFFIRO, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in St.

Petersburg Beach, Florida, on June 17, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioners: Attorney Thomas W. Reese

123 Eighth Street North

St. Petersburg, Florida 33701 For Respondent City of St. Petersburg Beach:

James A. Devito

Devito and Colen, P.A.

6830 Central Avenue, Suite A St. Petersburg, Florida 33707

For Respondent Department of Community Affairs:

Karen Brodeen

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Intervenors: Martin Errol Rice

Martin Errol Rice, P.A.

P.O. Box 205

St. Petersburg, Florida 33731 STATEMENT OF THE ISSUES

The issue in this case is whether a plan amendment is not in compliance for the reasons asserted by Petitioners.

PRELIMINARY STATEMENT

On November 7, 1989, the City of St. Petersburg Beach adopted its revised comprehensive plan. After reviewing the plan, the Department of Community Affairs issued a Notice of Intent to find the plan in compliance. The Department's determination of compliance became final when no affected person filed a petition challenging the plan and determination of compliance.

On October 16, 1990, the City of St. Petersburg adopted Ordinance No. 90- 28, which contains the plan amendment that is the subject of this case. The plan amendment changes the future land use designation of less than 1.5 acres of land from Low-Medium Density Residential to Medium Density/Tourist Residential. On December 9, 1990, the Department of Community Affairs issued a Notice of Intent to find the plan amendment in compliance. Petitioners filed petitions challenging the notice oil intent and plan amendment.

As alleged in the Amended Petition for Hearing, the issues presented for hearing are as follows:

1. Whether the new designation is unsupported by data and analysis that have been used in a professionally accepted manner (Section 163.3177(10)(e) and Rule

   9J-5.005(2)), particularly as to:

   1. analysis disclosing a need for increased densities;

   2. data and analysis concerning the protection of existing residential neighborhoods at page 40 of the Future Land Use Element;

   3. identification of the coastal high hazard area;

   4. analysis of existing hurricane

      evacuation times and hurricane shelter space, including a possible deficiency of emergency public shelter space on page 36 of the Coastal and Conservation Element and declining emergency evacuation clearance times on page 40 of the Coastal and Conservation Element (Rule 9J-5.012(2)(e));

   5. identification of all environmentally sensitive areas, such as dunes and the 100 year floodplain, and historic resources such as the Don Cesar Place subdivision (Section 163.3178); and

   6. general land use suitability analysis

   of the relation of the redesignated property

   to the location of the 100 year floodplain and coastal dunes, with due regard to the analysis at page 21 of the Coastal

   Conservation Element (Section 163.3177 (6) (d), Chapter 187, and Rule 9J-5.006(2) (a) and

2. Whether the plan, due to the amendment, is inconsistent with the criterion of directing densities away from known or predicted coastal high hazard areas, as set forth in Section 163.3178 and Rule

   9J-5.012(3)(b)6.

3. Whether the new designation is inconsistent with the criteria concerning mitigation of hazards associated with natural disasters, as set forth in Section 163.3178(2)(d)

4. Whether the new designation is inconsistent with:

   1. Future Land Use Element Objective 1.1

      and Policy 1.1.5 and Future Land Use Element Objective 1.4 and Policy 1.4.2 protection existing residential neighborhoods;

   2. Future Land Use Element Objective 1.6 protecting historic resources;

   3. Future Land Use Element Objective 1.7 protecting natural resources;

   4. Coastal and Conservation Element Objectives 2.3 and 2.4 maintaining or reducing hurricane evacuation times and engaging in hazard mitigation measures; and

   5. Coastal and Conservation Element Objective 2.2 directing population concentrations away from the coastal high hazard area and Future Land Use Element Policy 2.1.9 minimizing development in high- risk areas.

5. Whether the new designation is inconsistent with the following policies of the Regional Plan:

   1. 16.5.1 designating residential land uses to mitigate hazards to life and property;

   2. 16.5.3 protecting residential land use compatibility; and

   3. 16.6.1 ensuring commercial land use compatibility.

6. Whether the new designation is inconsistent with the following provisions of the state plan:

a. Section 187.201(9) directing densities away from known or predicted coastal high hazard areas; and

b. Section 187.201(9)(b)6. and 7. [sic; "7" should be "9."] restoring and avoiding the disturbance of coastal dune systems.

At the hearing, Petitioners called five witnesses and offered into evidence nine exhibits. The City of St. Petersburg Beach called one witness and offered into evidence 19 exhibits. The Department of Community Affairs called one witness and offered into evidence one exhibit. Intervenors called no witnesses and offered into evidence four exhibits. All exhibits were admitted except City's Exhibit 14 and Intervenor's Exhibits 1, 2, and 4.

The parties entered into a stipulation at the hearing that everyone has standing and the Shalimar Motel has been in operation as a hotel since no later than 1962.

No transcript was ordered. Each party followed a proposed recommended order. Treatment of the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. Background

   
   

   1. This case involves the designation of six contiguous parcels located in the southern half of the City of St. Petersburg Beach (City), which is located on a barrier island sheltering the southern tip of the mainland of Pinellas County from the Gulf of Mexico. As a whole, the six parcels are bounded by the Gulf of Mexico to the west, 37th Avenue to the south, Gulf Boulevard to the east, and other privately owned property to the north. The southern boundary of the parcels is about 330 feet north of the Don Cesar Hotel and the Pinellas Bayway, which connects the City to the mainland of Pinellas County,. Gulf Boulevard in the area of the parcels is a four-lane arterial paralleling the beach.

      
      

   2. The northernmost of the six parcels measures about 61 feet by 290 feet and extends from Gulf Boulevard to the Gulf. The northernmost parcel, which contains apartments, is also known as Lot 33, Bellvista Beach, as recorded in Plat Book 7, Page 34, Public Records of Pinellas County, Florida.

      
      

   3. Immediately south of the northernmost parcel lies the parcel on which the Shalimar Motel is located. This irregularly sized parcel measures roughly

      158 feet along Gulf Boulevard, 110 feet on its south boundary, 120 feet on its north boundary, and 175 feet on the west boundary. The Shalimar Motel has been in operation on this parcel since no later than 1962.

      
      

   4. The remaining four parcels6 separate the Shalimar Motel from the Gulf. Each parcel measures about 50 feet wide and 175 feet deep. A narrow road or access easement runs in a north- south direction between these parcels and the Shalimar Motel. Three of the 50-foot parcels are developed as singled family residences. The second parcel from the south is vacant. The four 50-foot parcels plus the Shalimar Motel parcel are also known as Block G, Don Cesar Place, as recorded in Plat Book 13, Pages 15-20, Public Records of Pinellas County, Florida.

      
      

   5. Including the interior road or easement, the six parcels contain about 61,508 square feet or about 1.41 acres. The northernmost parcel is about 17,739 square feet or about 0.41 acres, and the remaining parcels are about 43,769 square feet or nearly one acre.

   6. Photographs produced at the hearing depict a dune that is well covered by vegetation to the south of the six parcels. No significant vegetation and little dune remains immediately north of the parcels. Hardly any dune protects the northernmost parcel, whose seawall is several feet landward of the adjoining seawalls. A small area of dense vegetation has developed in the corner of the inset seawall and the northern face of the seawall of the northernmost of the four 50-foot parcels. The dune and accompanying vegetation begin to develop toward the southern end of the northernmost of the four 50-foot parcels.

      
      

   7. It is difficult to determine the location of the dune line relative to the west boundaries of the four 50-foot parcels. The dunes appear to have widened recently and, in the process, are covering some permanent improvements evidently at the extreme westerly end of the parcels. However, the evidence fails to establish the precise location of the west boundary of the four 50-foot parcels relative to the dune line.

      
      

   8. The vacant 50-foot parcel is posted as the private property of the Shalimar Motel. A narrow portion of dune and vegetation on the vacant parcel has been eliminated by pedestrian traffic using a paved sidewalk running toward the motel from just behind the dune line. A considerable amount of sand has been swept by the wind through the pathway. Much of the sand has been deposited against a small metal shed lying behind the dune where it reforms to the north of the pathway.

      
      

   9. The dune and vegetation begin to increase in size along the southernmost of the four 50-foot parcels. The band of vegetation doubles in width at the west end of 37th Avenue and maintains this width as it proceeds to the south.

      
      

   10. The City adopted its revised local comprehensive plan on November 7, 1989 (Plan). Except for the westerly 30 feet of the northernmost parcel, which was designated Recreation/Open Space, the future land use map (FLUM) designates all-of the six parcels as Low-Medium Density Residential,7 which allows residential development at densities up to 10 units per "net" acre (10:1). All land to the west of the Coastal Construction Control Line is designated Preservation.

       
       

   11. Medium Density/Tourist Residential allows residential development at densities up to 15 units per "gross" acre (15:1) and tourist development at densities up to 30 units per "gross" acre (30:1). Recreation/Open Space is for "recreational uses."

       
       

   12. The Department of Community Affairs (DCA) issued a Notice of Intent to find the revised plan in compliance. No affected person filed a petition challenging the determination or plan.

       
       

   13. By Ordinance No. 90-29, which became effective December 6, 1990, the City adopted the plan amendment that Petitioners challenge. The plan amendment incorrectly recites that the Plan, prior to amendment, designates all of the subject parcels as Low-Medium Density Residential. In any event, the plan amendment designates all six parcels, in their entirety, as Medium Density/Tourist Residential.

2. Data and Analysis

   
   

   1. Density and Compatibility

      
      

      1. The data and analysis report that the population of the City was 9354 persons in 1980. Based on data-supplied by the Bureau of Economic and Business Research of the University of Florida, the data and analysis note that the population of the City increased at an average annual rate of 1.77% from 1972 to 1986, falling to a rate of 1.08% during the last seven years of the period.

         
         

      2. The data and analysis disclose that tie City is almost entirely built out. Only 33.5 acres, or 2.5%, of the City remains vacant. About one-third of the vacant land has been platted into 45 residential lots. Except for about seven acres designated commercial, the remainder of the vacant land in the City has been designated residential at densities ranging from 7.5 to 15 units per acre.

         
         

      3. A lengthy discussion in the data and analysis considers various methods for projecting the future population of the City during the planning timeframe. The data and analysis recommend that

         
         

         [a]fter consideration of the character of the community, the amount and character of vacant land remaining in the City, the desires of the residents to limit population growth, and the distaste for further high density/high rise residential construction, it was determined that for purposes of this Comprehensive Plan, the City . . . would be identified as a built-out community. As such, no population projections would be made beyond the carrying capacity of the land of 10,465.

         
         

         Future Land Use Element (FLUE), page 21.

         
         

      4. The data and analysis assume that 1.94 persons will occupy a permanent dwelling unit and 2.5 persons will occupy a transient or tourist dwelling unit, such as a motel room. After adjustment for the considerable number of nonresidents who own residences within the City, as well as applicable vacancy rates, the seasonal population was determined to be 2534 persons residing in permanent housing and 6071 persons residing in transient tourist facilities. When these seasonal populations are added to the permanent population of 10,465, the total projected population is 19,070 persons throughout the planning period.

         
         

      5. Expanding on the discussion of the preferences of residents and the built-out condition of the City, the land use analysis states:

         
         

         it can be assumed that any development on the remaining vacant land will be in keeping with the density and intensity of the surrounding residential properties. Any deviation from this would be counter to the direction under which this Element was prepared.

         
         

         FLUE, page 40.

      6. Acknowledging that no part of the City is blighted or in need of redevelopment, the analysis notes:

         
         

         There have been complaints regarding the development of multifamily projects adjacent to commercial tourist accommodations and, to a lesser degree, general commercial establishments. The problem is most pronounced along the Gulf side of Gulf Boulevard, in the Tourist District. Due to the purpose of this area, intense development is in keeping with its character. Although little can be done to correct the problems created by past development, amendments to' the City's land development regulations could afford additional buffering and lessen future incompatibility.

         With regard to redevelopment within the Tourist District, local officials are of the opinion that little change will occur in the motel/hotel density. Recent projects have resulted in the demolition of preexisting establishments and the erection and consolidation of a single new business. An example of this would be the Trade Winds Resort, where one motel was enlarged through the demolition and consolidation of three adjacent ones.

         
         

         FLUE, pages 40-41.

         
         

      7. The data and analysis recognize distinct neighborhoods divided by 37th Avenue. South of 37th Avenue and north of 32nd Avenue, the data and analysis identify the "Don Cesar Area" as follows:

         
         

         Primarily residential in character with both low density and medium density uses (single- family detached and multifamily). It is also a noteworthy area in that it contains the historic landmark Don Cesar Hotel which separates the residential Pass-a-Grille area from the more intense commercial and tourist facilities to the north. FLUE, page 6.

         
         

      8. Describing the neighborhood to the north, the data and analysis identify the "Gulf Boulevard Tourist District (Gulf Boulevard between 37th and 64th Avenues)":

         
         

         The most intense land use area, this district is linear in shape. It is comprised of general commercial, high density multifamily residential and commercial tourist accommodations adjacent to Gulf Boulevard.

         It is the one area of the City that can be considered to contain inconsistent land uses, i.e., multifamily adjacent to commercial tourist accommodations. Id.

      9. Two blocks separate the subject parcels from the Don Cesar Hotel to the south. A narrow road runs north-south through both blocks, and the lots within these two blocks are smaller than the lots constituting the six subject parcels. The dominant existing land use in these blocks is residential, with many single family dwelling units. The Plan designates the Gulf side of these two blocks as Low Density Residential and the Gulf Boulevard side as Medium Density Residential. A strip about 60 feet deep divides the Gulf side lots from the Gulf and is designated Recreation/Open Space. The west boundary of the 60- foot strip is the Coastal Construction Control Line.

         
         

      10. Thirty-Seventh Avenue is the last road connecting Gulf Boulevard to the beach for about 4300 feet to the north. After a second such road just to the north of the first, no road intersects Gulf Boulevard from the west for another 3600 feet.

          
          

      11. Except for one large parcel designated Recreation/Open Space, the land to the north of the six parcels is exclusively designated Medium Density/Tourist Residential for 3600 feet. At this point, a parcel somewhat smaller than the combined size of the six parcels is designated Medium Density Residential and two very small areas are designated Recreation/Open Space. The remaining land between Gulf Boulevard and the beach is designated Medium Density/Tourist Residential for almost one mile north of the Medium Density Residential parcel, except for a smaller parcel designated Residential/Office/Retail and two more strips of Recreation/Open Space just to the north of the Medium Density Residential parcel.

          
          

      12. The City contains about 1303 acres with about 813 acres, or 62%, devoted to existing residential uses, according to the data and analysis. About

          138 acres, or 11%, of the City is devoted to existing commercial uses. The City contains no existing industrial or agricultural uses. About 57 acres, or 4.4%, of the City is in existing recreation/open space uses, and 260 acres, or 20%, is in existing public facility uses.

          
          

      13. Determining that, in 1987, 131 acres in the City were in commercial use, the land use analysis concludes that, based on a formula obtained from a publication of the Urban Land Institute, the City had 250% of the commercial acreage that it needed, based upon its population.

          
          

   2. Identification and Analysis of Dunes and Floodplain

      
      

      1. Concerning beaches and dunes, the data and analysis state in part:

         
         

         In the 1950s the beaches along the City

         of St. Petersburg Beach were narrow but there was a rather large accumulation of sand on the north end of the island, just south of Blind Pass. By the early 1970s this had changed somewhat. The beach width had increased over most of the island and

         erosion had occurred at the north end. The beach growth is primarily the result of nourishment projects but some may be due to erosion near the north end of the island and subsequent southerly littoral transport. The most recent nourishment along this barrier island was completed during the summer and

         fall of 1986.

         Historically, the barrier island in which St. Petersburg is located provided for the establishment of dune vegetation in the City's predevelopment days. Today, very little remains of what was once a unique ecosystem. Although the natural system has disappeared there has been a substantial effort put forth by the City to build a new dune system. Most natural sand dunes and vegetation had been eliminated and replaced by seawalls in the past. Today, the City encourages dune restoration and the construction of walkover structures. The beach area normally supports a community of salt-tolerant plants including sea oats, railroad vine and sea grapes. A few plants can still be found today scattered throughout the area. Protection or restoration of the valuable dune vegetation is necessary to maintain dune systems which in turn provide protection from high energy storm events add prevent property damage, while stabilizing the beach as well as promoting wildlife habitat areas. The City's active involvement in restoration programs has helped to alleviate many of the aforementioned problems. Coastal and Conservation Element

         
         

         (Coastal Element), pages 20-21.

         
         

      2. Elsewhere, the data and analysis add:

         
         

         Most natural sand dunes and vegetation have been eliminated by urban development. In many cases urban development can be designed to be compatible with the natural environment. However, the majority of urbanization that has occurred in the City has had a negative impact on the environment.

         Both natural and man-made destruction

         of natural dune systems and water courses has weakened the shoreline and caused erosion.

         Only scattered, isolated areas of marine vegetation can be found on the upland areas of the community. Due to their small size and location on private property, no attempt was made at calculating their acreage.

         * * *

         The Gulf dune systems and corresponding beach areas have also been designated as conservation areas. FLUE, page 11.

      3. Concerning the sandy beach, the data and analysis state:

         
         

         The entire sandy beach area is recognized as open space because it provides scenic amenities and recreation. Those portions of the beach which are privately owned (those lands lying above the mean high water line) have been recognized as municipal open space. The designation of privately owned beach lands as open space in the plan is a functional designation of how the land is used by the general public. FLUE, page 10.

         
         

      4. The data and analysis describe the protective function of the beach and dune system as follows:

         
         

         The beach and shoreline . . . is the City's largest and most important resource both economically and aesthetically .

         Management of this resource must receive a continuing effort and not be a periodic correction measure. As a result of the destruction of almost the entire dune line along the length of the Gulf beach, the potential for severe property damage during heavy or tropical storms has been significantly increased. The sand along this beach is an invaluable non-living resource which is subject to loss from wind and water, and man-made encroachments.

         
         

         FLUE, page 15.

         
         

      5. The data and analysis concede that the "need to preserve open space in the City . . . is critical." Recreation/Open Space Element, page 9. The relationship between open space and hazard mitigation is neatly summarized by the data and analysis as follows:

         
         

         Lands designated for open space and. recreational uses in high risk areas substantially reduce the amount of property at risk, leading to a reduction in future losses from hurricanes and storms. . .

         
         

         Coastal Element, page 56.

         
         

      6. As to the City's plan regarding recreation open space, the data and analysis state: "Currently, there are approximately 54.35 acres in [the City] dedicated to recreation open space. These areas should be protected from development and adequately maintained." Id. at page 16.

         
         

      7. The Recreation Facilities and Water-Dependent/Water-Related Facilities Map, which is part of the data and analysis included in the Recreation/Open Space Element, purportedly depicts the 57.35 acres of "recreation open space" in the City. Id. at page 9. This map, which is Map 11, inexplicably omits many parcels that the FLUM designates as Recreation/Open Space. Beginning about two blocks south of the Don Cesar Hotel, Map 11 shows the Preservation area

         Conservation Open Space, but fails to designate similarly any of the considerable amount of Recreation/Open Space that the FLUM depicts between the Preservation and various residential designations. In fact, except for the Preservation area seaward of the Coastal Construction Control Line and a couple of parcels designated as Conservation Open Space, Map 11 fails to depict as recreation or open space any of the land designated as Recreation/Open Space in the FLUM in the southern half of the City north of the Don Cesar Hotel.

         
         

      8. The land use analysis acknowledges that the entire City falls within the 100-year floodplain. FLUE, page 42. Recognizing that elevations range from sea level to 10 feet with about two-thirds of the City at or below an elevation of five feet, the analysis concedes that "the City is highly vulnerable to the dangers of flooding." FLUE, page 36. The 100-year floodplain is also known as the "Hurricane Vulnerability Zone." Coastal Element, page 45.

         
         

   3. Coastal High Hazard Area and Hurricanes

      
      

      1. The data and analysis identify the City's coastal high hazard area (CHHA) as "that portion of the City projected to receive the most severe damage from hurricanes and coastal storms." Coastal Element, page 44. The CHHA is the land seaward of the Coastal Construction Control Line set by the Florida Department of Natural Resources and within the V-Zone depicted in the Flood Insurance Rate Map (FIRM) used in the National Flood Insurance Program.

         
         

      2. The FIRM divides the 100-year flood zone into A-Zones and V-Zones.

         The V-Zones require stricter protections because they are not only vulnerable to the storm surge up to the 100-year flood level, but are also subject to the "devastating effects of velocity wave action." Coastal Element, page 47.

         
         

      3. The Coastal Construction Control Line "define[s] that portion of the beach-dune system which is subject to severe weather fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Coastal Element, page 44 (quoting Section 163.053(1), Florida Statutes.)

         
         

      4. The data and analysis report that existing land uses within the coastal high hazard area are "primarily recreation and open space and seawalls."

         Coastal Element, page 45. According to the data and analysis, the FLUE

         
         

         maintains or lowers the density of residential use (overall density to a maximum of 10 units per acre, unless development as a Planned Unit Development . . . in which a 15 unit per acre ceiling shall be established) occurring within the hurricane vulnerable section of the City. This reduction is consistent with the need to reduce the risk from hurricane evacuation and response. Id.

         
         

      5. The data and analysis devote considerable attention to hurricane evacuation times and shelters, partly in recognition that the Tampa Bay Region is "one of the most hurricane-vulnerable areas in the United States with the potential for large scale loss of life." Coastal Element, page 30. The data and analysis promote hurricane preparedness due to the location of the City on a barrier island and the large number of aged persons who may require added evacuation assistance.

      6. The City is in the "most hurricane-vulnerable area" and is divided into two evacuation zones. Coastal Element, page 33. Persons residing north of 46th Avenue will be directed to cross the Corey Causeway, and persons residing south of 46th Avenue will be directed to cross the Pinellas Bayway. The approaches to these bridges, as well as the Howard Franklin Bridge, which all City residents and most Pinellas County residents must use to reach I-4, are

         low-lying and will be susceptible to early flooding.

         
         

      7. Breaking down hurricane evacuation times into prelandfall hazards times and clearance times the data and analysis note that the Pinellas Bayway was one of two roadway links that, in a 1984 study, was identified as critical with 15 hours required for clearance. Two years later, another study suggested that the clearance time was reduced by four hours on a base run simulating an average evacuation level. Subsequent road improvements to the Pinellas Bayway reduced the clearance time by an additional two to nine hours.

         
         

      8. Analysis of hurricane shelters assumes a need of 10 square feet of space for emergency refuge, 20 square feet for overnight shelter, and 40 square feet for extended periods. The analysis notes various demographic factors that must be considered in calculating the amount of shelter space needed, including the "shadow evacuation" phenomenon in which nonvulnerable residents evacuate to public shelters.

         
         

      9. Deriving three rates of utilization of hurricane emergency shelters, the analysis concludes that, using the 10 square foot standard, secured public shelter Space will be exhausted if more than 14.5% of the evacuating population seeks public shelter. The assumed low rate of utilization is 15%. At the low rate, therefore, secondary shelter must be opened. With this space, Pinellas County can meet the projected demand in the event of the assumed medium rate of utilization.

         
         

      10. The analysis concedes that there is "considerable debate" over the adequacy of the 10 square foot standard. The rationale for adopting this standard is not so much a justification of the 10-foot standard as it is an acknowledgement that sufficient shelter simply does not exist:

          
          

          [C]onsidering the densely populated coastline in Pinellas County, the 20 square foot standard must be considered a long range objective with the ten square [foot standard] (medium demand) an intermediate standard.

          Given the projected demand from future growth in the City as well as the County coastal and mobile home populations, the Red Cross, County School Board, and the County Department of Civil Emergency Services will be seeking additional facilities to accommodate the future demand for public shelter in the event of a hurricanes. . .

          
          

          Coastal Element, page 37.

          
          

      11. The City has participated actively with the Federal Emergency Management Agency (FEMA) and Federal Insurance Administration in the National Flood Insurance Program. By letter received May 24, 1991, FEMA announced that the City's achievements in this regard earned its residents a five percent reduction on new or renewed flood insurance policies, as of October 1, 1991.

   4. Identification of Historic Resources

   
   

   1. The data and analysis disclose only two historic resources in the City. One is the Don Cesar Hotel, which was built in 1926 and is listed on the National Register for Historic National Landmarks. The second historic resource is the Pass-a- Grille Beach Church, which was built in 1913 and is now used as a private residence.

      
      

   2. The FLUE data and analysis discuss an area between 1st and 15th Avenues and Gulf and Pass-a-Grille Ways that contains about 125 buildings dating from the turn of the century. The City has applied to the federal government to include the 15- block area, which is in the southern end of the City, on the National Register of Historic Places.

      
      

3. Goals, Objectives, and Policies

   
   

   1. FLUE Objective 1.1 is to maintain the "integrity and quality of life in existing residential neighborhoods through the maintenance of low to medium densities." FLUE Policy 1.1.5 is to use land development regulations to "[protect] existing residential areas . . . from the encroachment of incompatible activities . . .

      
      

   2. FLUE Objective 1.4 is for the City to "enhance and protect the City's existing character through redevelopment which ensures an orderly and aesthetic mixture of land uses." FLUE Policy 1.4.2 is for the City to use land development regulations to "encourage opportunities for the rehabilitation and/or revitalization of the existing residential structures" in order to "ensure the continued maintenance of [the City's] beach residential character."

      
      

   3. FLUE Objective 1.6 is: "As of the effective date of this Comprehensive Plan, development activities shall ensure the protection of historic and architecturally significant resources." FLUE Objective 1.7 is: "As of the effective date of this Comprehensive Plan, development activities shall ensure the protection of natural resources."

      
      

   4. Coastal Element Objective 2.2 is: "As of the effective date of this Comprehensive Plan, the City shall direct population concentrations away from the designated Coastal High Hazard Area." FLUE Policy 2.1.9 is for the City to "minimiz[e] development in high risk areas, such as the hurricane velocity zone, by full support of Coastal Construction Zone limitations."

      
      

   5. Coastal Element Objective 2.3 is: "As of the effective date of this Comprehensive Plan, the City shall maintain or reduce hurricane clearance times." Coastal Element Objective 2.4 is: "As of the effective date of this Comprehensive Plan the City shall reduce the risk of exposure of human life and

      . . . property to natural disasters through preparedness planning and implementation of hazard mitigation measures."

      
      

   6. The measure by which attainment of Objective 2.2 is evaluated is "[p]opulation density within the Coastal High Hazard Area." The measure by which attainment of Objective 2.3 is evaluated is "Hurricane Evacuation Clearance Times." The measures by which attainment of Objective 2.4 is evaluated are "[d]evelopment of City Hurricane Plan [and] [i]mplementation of Policies."

4. Regional Plan

   
   

   1. Policy 16.5.1 of the Regional Policy Plan of the Tampa Bay Regional Planning Council (Regional Plan) states:

      
      

      Residential areas shall be located and designed to protect life and property from natural and man-made hazards such as flooding, excessive traffic, subsidence, noxious odors and noise.

      
      

   2. Regional Plan Policy 16.5.3 provides:

      
      

      Existing residential areas shall be protected from the encroachment of incompatible activities .

      
      

   3. Regional Plan Policy 16.6.1 states:

      
      

      Commercial land uses shall be located in a manner which ensures compatibility with the type and scale of surrounding land uses and where existing or programmed public facilities will not be overburdened.

      
      

5. State Plan

   
   

   1. Goal 9 of the state plan is:

      
      

      to ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources.

      
      

      Policies 6 and 9 of Goal 9 are to:

      
      

      6. Encourage land and water uses which are compatible with the protection of sensitive coastal resources.

      9. Prohibit development and other activities which disturb coastal dune systems, and ensure and promote the restoration of coastal

      dune systems that are damaged. Section 187.201(9).

      
      

6. Ultimate Findings of Fact

1. Supporting Data and Analysis

   
   

   1. Petitioners have failed to establish, to the exclusion of fair debate, that the new designation given the six parcels is not supported by data and analysis in terms of densities and residential protection. The six parcels constitute 1.41 acres. The old designation allowed a density of ten units per net acre (10:1), which yields no more than 14 dwelling units. 8/ The new designation allows a density of 15 units per gross acre (15:1), which yields 21 permanent dwelling units, and a tourist density of 30 units per gross acre, which yields 42 transient or tourist dwelling units.

   2. The data and analysis support these increases in density and intensity outside of the CHHA, as are the six parcels in their entirety, and in the absence of urban sprawl considerations, which are highly unlikely due to the small, already-urbanized area involved. The original designation supported no more than 27 persons, and the new designation supports 105 persons. Even ignoring the reduced impact from actual tourist occupancy rates, the difference here is only 78 persons, which represents only 0.4% of the projected total population. The incompatibility questions are amply addressed by the establishment of 37th Avenue as a fair and practical boundary between less dense and intense uses to the south and more dense and intense uses to the north.

      
      

   3. Petitioners have failed to establish, to the exclusion of fair debate, that the new designation causes the plan, as amended, to fail to identify properly the coastal high hazard area (CHHA). To the contrary, the V-Zones shown in the FIRM, as well as the land seaward of the Coastal Control Line, are depicted within the CHHA in the vicinity of the six parcels and are properly designated as Preservation. Petitioners have failed to prove that any part of the six parcels falls within the CHHA established by the Plan or that the CHHA should be expanded.

      
      

   4. Petitioners have failed to establish, to the exclusion of fair debate, that the new designation is not supported by the analysis of existing hurricane evacuation times and hurricane shelter space for the reasons noted above in connection with population densities. Although the analysis itself suggests that the emergency-refuge standard selected for hurricane shelter space may be insufficient, the addition of another 78 persons, or 0.4% of the City's projected total population, will not have a measurable effect on the use of such space.

      
      

   5. Petitioners have failed to prove, to the exclusion of fair debate, that the new designation is not supported by the data and analysis identifying all historic resources. The data and analysis do not compel the designation of the Don Cesar Place subdivision, rather than merely the Don Cesar Hotel, as an historic resource. Moreover, the evidence does not establish that the new designation will adversely affect the neighborhood surrounding the Don Cesar Hotel. Although the five parcels south of the northernmost parcel were originally platted as part of the Don Cesar Place subdivision, the historic value is derived more from present conditions than the area platted decade ago. Thirty-Seventh Avenue serves as an effective boundary dividing land uses of differing intensity and density and thereby protecting the Don Cesar Hotel, as well as its neighborhood.

      
      

   6. Petitioners have failed to prove, to the exclusion of fair debate, that the new designation is not supported by data and analysis identifying all environmentally sensitive areas, such as dunes and the 100-year floodplain. The evidence fails to establish that the greater intensity and density allowed on the subject 1.41 acres will have a measurable effect upon the functions of the already-disturbed floodplain, which encompasses the entire City. Likewise, the evidence fails to establish that the existing dunes are incorrectly identified. It is at least fairly debatable that the existing dunes are located to the west of the subject parcels.

      
      

   7. However, Petitioners have proved to the exclusion of fair debate that the new designation accorded the 30-foot strip of the northernmost parcel is unsupported by data and analysis. The data and analysis, although sufficient to support increased density and intensity for land originally designated as Low- Medium Density Residential, offer no support whatsoever for increasing the

      density and intensity of land originally designated as Recreation/Open Space. The redesignation of the 30-foot strip defies the land use suitability analysis, which repeatedly emphasizes the importance of open space and the critical protective role of the beaches and dunes. Thus, the redesignation requires additional data and analysis, which the City failed to provide because it was unaware that the six parcels included any area designated Recreation/Open Space.

      
      

2. Consistency with Miscellaneous Minimum Criteria

   
   

   1. Petitioners have failed to establish, to the exclusion of fair debate, that the plan fails to contain an objective directing densities away from known or predicted CHHA's. The plan amendment does not repeal Coastal Element Objective 2.2, which addresses this issue.

      
      

   2. Petitioners have failed to establish, to the exclusion of fair debate, that the plan fails to contain an objective mitigating natural The plan amendment does not repeal Coastal Element Objectives 2.3 and 2.4, which address this issue.

      
      

3. Internal Consistency

   
   

   1. For the reasons set forth above, Petitioners have failed to establish, to the exclusion of fair debate, that the new designation conflicts with plan provisions protecting existing residential neighborhoods, protecting historic resources, reducing or maintaining hurricane evacuation times, engaging in hazard mitigation measures, and directing population concentrations away from the CHHA.

      
      

   2. The question is closer as to the consistency of the new designation with FLUE Objective 1.7, which requires "development activities [to] ensure the protection of natural resources." The redesignation of the 30-foot by 61-foot strip from Recreation/Open Space to Medium Density/Tourist Residential may impede the protection of natural resources, but Petitioners have not established such a fact to the exclusion of fair debate. Specifically, Petitioners failed to prove by the requisite standard that development of the strip would jeopardize the beach or dune system.

      
      

4. Consistency with Regional Plan

   
   

   1. For the reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the new designation conflicts with Regional Plan Policies 16.5.3 and 16.6.1, which involve the compatibility of residential and commercial uses, and Policy 16.5.1, which involves the protection of residential areas from natural and man-made hazards.

      
      

5. Consistency with State Plan

1. For the reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the new designation conflicts with State Plan Goal 9 or Policies 6 and 9, which are to ensure that coastal area development does not endanger public safety or important natural resources.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction, Standing Standard of Proofs and "In Compliance"

      
      

2. 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.)

   
   

3. Petitioners are "affected persons" within the meaning of Section 163.3184(1)(a) and thus have standing to file the petitions challenging DCA's determination that the County's plan is in compliance.

   
   

4. Petitioners are required to proye to the exclusion of fair debate that the plan is not "in compliance." Section 163.3184(9)(a). "In compliance" is "consistent with 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."

   
   

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.

   
   

6. Section 163.3184(9) requires that the fairly debatable standard should be applied to the determination of compliance. As noted below, the compliance determination is driven by the various consistency determinations. Once it has been determined, for instance, that a plan is internally inconsistent, the conclusion necessarily follows that the plan is not in compliance, regardless of the standard of proof employed for the compliance determination. Applying the fairly debatable standards merely to the ultimate question of compliance would therefore be meaningless.

   
   

7. At minimum, the fairly debatable standard must be applied to the underlying consistency determination. Although the Act does not so expressly provide, it does so indirectly. Section 163.3184(10) identifies the standard of proof in cases in which DCA has found the plan not to be in compliance. The evidentiary standard in such cases is intended to be more adverse to the local government than the evidentiary standard in Section 163.3184(9) cases, as here. The sole application of the fairly debatable standard in Section 163.3184(10) cases is o the determination of internal consistency. Because Section 163.3184(9) cases are intended to be governed by a Standard of proof more favorable to the local government, the City should receive the benefit of the application of the fairly debatable standard to the internal consistency determination, as is the case in Section 163.3184(10) proceedings. There is no basis for treating the internal consistency determination differently, in this respect, from other consistency determinations, which should also be governed by the fairly debatable standard.

8. The question remains whether the fairly debatable standard should be applied to determining the of what is in the plan. There is normally no dispute whether plan contains a specific provision. With some frequency, however, it is not clear whether the plan contains a specific objective or specific analysis. In this case, for instance, an important question is what designations the northernmost parcel received in the original FLUM. Although there is no affirmative authority for this conclusion, in the absence of any other standard of proof, the fairly debatable standard applies to determinations of the contents the plan in Section 163.3184(9) proceedings.

   
   

9. Regardless of the evidentiary standard or the levels to which it is applied, it is necessary to determine the meanings of "consistency" as applied to consistency with the criteria of the Act and Chapter 9J-5, internal consistency, and consistency with the regional plan and state comprehensive plan. 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.

   
   

10. 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.

    
    

11. The Act describes internal consistency as "coordination" among the several elements. Section 163.3177(2). Internal consistency also means that the elements are "related" to each other. Section 163.3177(9)(b).

    
    

12. 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.

    
    

13. 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.

    
    

14. 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" 9/ 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.

15. Another approach to determining consistency with the criteria of Sections 163.3177 and 163.317B 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 mist be undertaken before determining that the plan is not consistent with applicable statutory and regulatory criteria.

    
    

16. 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.

    
    

17. 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.

    
    

18. 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.

    /10

    
    

19. In one instance, the Act expressly endorses more flexibility than exists in the "minimum criteria" approach. The determination whether the plan is consistent with the criteria requiring certain detailed data must be based on such factors as the government's "complexity, size, [and] growth rate." Rule 9J- 5.002(1). 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.

    
    

20. The language of the Act favors the "consistency" approach over the "minimum criteria" approach. The "consistency" approach derives its support from the critical provision of the Act defining "in compliance." By contrast, the "minimum criteria" approach derives its support from less operative sources within the Act--a legislative declaration /11 and a legislative directive to DCA regarding rulemaking. /12

21. Adopting the "consistency" approach may emphasize flexibility over predictability, at least until the emergence of guidelines for the application of the consistency test with regard to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5. However, the Act tacitly endorses similar flexibility in the determinations of consistency with the state and regional plans.

    
    

22. 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.

    
    

    1. Issues Raised by Petitioners

       
       

23. Issues 1-6 in the Preliminary Statement, at pages 3-5 above, identify the specific issues raised by Petitioners in this case. It is necessary to address several discrepancies between the issues raised in the Amended Petition for Hearing filed March 8, 1991, and the issues addressed in Petitioners' proposed recommended order.

    
    

24. Issue 4.a. is whether the new designation is inconsistent with FLUE Objective 1.4. The amended petition does not allege inconsistency with this objective, but the amended petition does allege that the designation is inconsistent with FLUE Policy 1.4.2, which is one of only two policies under Objective 1.4. In view of the text of these provisions, the recommended order addresses the consistency of the new designation with FLUE Objective 1.4 as well as FLUE Policy 1.4.2.

    
    

25. Issue 4.e. is whether the new designation is inconsistent with Coastal Element Objective 2.2 and FLUE Policy 2.1.9. The amended petition does not allege inconsistency with these provisions, nor any policy under Coastal Element Objective 2.2.

    
    

26. The allegation of inconsistency with Coastal Element Objective 2.3 raises largely different issues from allegations of inconsistency with Coastal Element Objective 2.2 or FLUE Policy 2.1.9. Coastal Element Objective 2.3 is to maintain or reduce hurricane evacuation times. Coastal Element Objective 2.2 is to direct population concentrations away from the CHHA, and FLUE Policy 2.1.9 is to minimize development in high-risk zones, such as the hurricane velocity zones which is also the CHHA, in "full support" of the "Coastal Construction Zone limits."

    
    

27. Paragraph 13(c) of the amended petition raises the issue whether the new designation is consistent with the criteria of Chapter 9J-5, the Regional Plan, and the state plan to direct populations away from coastal high hazard areas. However, this issue is different from the issue whether the new designation is consistent with the Plan provision directing population densities away from the CHHA. The mere presence of Coastal Element Objective 2.2 evidences consistency with the criteria of Chapter 9J-5, the Regional Plan, and the state plan regarding populations and coastal high hazard areas. There is obviously a significant difference between the issues of internal consistency,

    on the one hand, and consistency with Chapter 9J-5, the Regional Plan, and the state plan, even though the relevant plan provisions and applicable criteria involve population concentrations and the coastal high hazard area.

    
    

28. Although not pleaded, the question of internal inconsistency between the new designation and Coastal Element Objective 2.2 was nevertheless raised by Petitioners in their opening statement, rebutted by the City in its opening statement, argued by Petitioners in their proposed recommended order at pages 2-

    3 and elsewhere, and argued by the City proposed recommended order at page 3. Evidence at the hearing was offered, without objection, concerning this question of internal inconsistency. The issue was tried by consent, and Petitioners were not required to move to amend the pleadings. Cf. Rule 1.190(b), Florida Rules of Civil Procedure. The issue involving FLUE Policy 2.1.9 is closely related to Coastal Element Objective 2.2. The recommended order therefore addresses the consistency of the new designation with Coastal Element Objective 2.2 and FLUE Policy 2.1.9.

    
    

29. Issue 4.d. is whether the new designation is inconsistent with Coastal Element Objective 2.4, which is to protect human life and property by preparedness planning and hazard mitigation measures. The amended petition does not allege inconsistency with this objective, nor any policy under this objective. Petitioners did not raise in opening statement the issue of internal inconsistency between the new designation and these provisions, nor did the City address this issue at the hearing or in its proposed recommended order.

    However, the amended petition alleges that the new designation is inconsistent with Coastal Element Objective 2.3. Coastal Element Objective 2.4 is closely related to Coastal Element Objective 2.3, which addresses hurricane evacuation plans.

    
    

30. Issue G in Petitioners' proposed recommended order, at page 4, alleges that the new designation is inconsistent with the criteria of designating the coastal dune as a conservation use on the FLUM, as provided by Regional Plan Policy 10.6.2, Section 187.201(9)(b)9., Rules 9J-5.006(4)(a) and 9J-5.003(22), and the data and analysis. Of this authority, the amended petition mentions only Section 187.201(9)(b)9. and supporting data and analysis. Issue 6.b. addresses the issue whether the new designation is consistent with Section 187.201(9)(b)9., which involves the protection, not identification, of the coastal dune system. Issue 1.f. addresses the issue whether the new designation is supported by data and analysis, in terms of identifying the dunes.

    
    

31. Regional Plan Policy 10.6.2 addresses the preservation of habitat for endangered or threatened species or species of special concern. Among the values of the coastal dune system is the provision of habitat. However, the focus of Petitioners' pleadings and proof did not adequately inform the City that it had to address specifically the coastal dune system's habitat function, in addition to its protective function. The recommended order therefore does not address the consistency of the new designation with Regional Plan Policy 10.6.2.

    
    

32. The rules state the criteria for the contents of the FLUM, which Petitioner argues must include coastal dunes. This issue was not pleaded or litigated, so the recommended order does not address the consistency of the new designation with Rules 9J-5.006(4)(a) and 9J-5.003(22).

    1. Supporting Data and Analysis

33. Rule 9J-5.005(2)(a) provides: All goals, objectives, policies,

    standards, findings and conclusions within the comprehensive plan and its support documents shall be based upon relevant and appropriate data. . . . [DCA] will review each comprehensive plan for the purpose of determining whether the plan is based on the data described in this Chapter and whether the data were collected and applied in a professionally acceptable manner.

    
    

34. For reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the plan amendment is not consistent with the criterion of supporting data and analysis, except that Petitioners proved, to the exclusion of fair debate, that the redesignation of the 30-foot westerly tip of the northernmost parcel from Recreation/Open Space to Medium Density/Tourist Residential is not supported by data and analysis.

    
    

    1. Consistency with Miscellaneous Minimum Criteria

       
       

35. Rule 9J-5.012(3)(b)6. is the criterion of an objective that "[d]irect[s] population concentrations away from known or predicted "CHHA's]." Section 163.3178(2)(h) likewise calls for the "[d]esignation of high-hazard coastal areas, subject to destruction or severe damage by natural disasters, which shall be subject to the provisions of s.380.27(2)." Rule 9J-5.002 defines CHHA's as:

    
    

    areas designated by local governments pursuant to [Section] 163.3178(2)(h) and includes areas which have historically experienced destruction or severe damage, or are scientifically predicted to experience destruction or severe damage, from storm surge, waves, erosion, or other manifestations of rapidly moving or storm driven water. These areas shall include all areas within the local government's jurisdiction where public facilities have been damaged or undermined by coastal storms, [FEMA] designated V zones, areas seaward of the coastal construction control line established by the Florida Department of Natural Resources pursuant to Chapter 161, Florida Statutes, and inlets which are not structurally controlled.

36. Section 163.3178(2)(d) states that the plan should contain A component which outlines principles for

    hazard mitigation and protection of human

    life against the effects of natural disaster, including population evacuation, which take into consideration the capability to safely

    evacuate the density of coastal population proposed in the [FLUE] in the event of an impending natural disaster.

    
    

37. For the reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the plan, as amended, is not consistent with the above-cited criteria.

    
    

    1. Internal Consistency

       
       

38. Section 163.3177(2) and (9)(b) impose the criterion of internal consistency, as does Rule 9J-5.005(5)(a).

    
    

39. For the reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the new designation is not consistent with the above-discussed provisions of the Plan.

    
    

    1. Consistency with Regional Plan

       
       

40. For the reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the new designation is not consistent with the above-discussed provisions of the Regional Plan.

    
    

    1. Consistency with State Plan

    
    

41. For the reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the new designation is not consistent with the above-discussed provisions of the State Plan.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that the City's plan amendment is not in compliance because the redesignation of the 30-foot westerly tip of the Lot 33, Bellvista Beach, from Recreation/Open Space to Medium Density/Tourist Residential is not supported by the data and analysis.

ENTERED this 13th day of December, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division Administrative Hearings this on of day of December, 1991.

ENDNOTES

5/ 187.201(9)(b)7. is to protect marine fisheries habitat and other aquatic resources. Section 187.201(9)(b)9. is to prohibit development disturbing coastal dune systems. The former was not litigated; the latter was. The typographical error appears in the Amended Petition at Paragraph 13(d).

However, Petitioners' proposed recommended order at p. 4 refers to Section 187.201(9)(b)9., as does Petitioners' Request for Admission #24 served March 5, 1991. The reference has therefore been corrected.

If the reference were not a typographical error, the recommended order would not address the consistency of the new designation with Section 187.201(9)(b)7. See Paragraph 30, Conclusions of Law.

6/ The four 50' parcels are sometimes depicted as three parcels by combining the middle two parcels.

7/ Identifying the designations given the northernmost parcel requires close examination of the evidence. Measuring 290' west from the west edge of Gulf Boulevard, the northernmost parcel, as depicted on the FLUM, encompasses both Low-Medium Density Residential and Recreation/Open Space designations.

The FLUM confusingly seems to extend the west boundary of the four 50-foot parcels, and their Low-Medium Density Residential designation, even with the west boundary of the northernmost parcel. However, if the line dividing the Preservation and Low-Medium Density Residential designations of the four 50-foot parcels is intended to represent the west boundary of the parcels, the line is about 45' too far west. The ordinance adopting the plan amendment describes the subject parcels by metes and bounds as well as recorded lots. The metes and bounds description states that the northernmost parcel extends 45.48 feet west of the western boundary of the four 50-foot parcels. Petitioners Exhibit 9, which is the plat map of Don Cesar Place, and City Exhibit 13, which is the future land use map of the prior comprehensive plan, also depict the northernmost parcel as extending the same distance west of the four 50-foot parcels. The only contrary evidence is City Exhibit 2, which is an aerial photograph with "approximate" property lines. City Exhibit 2 is unreliable for the purpose of locating property lines. Based on all of the evidence, the west line of the northernmost parcel, to the exclusion of fair debate, extends 45.48' west of the west boundary of the four 50-foot lots. There is some evidence that a portion of the subject parcels may have been designated as Preservation, but this evidence is not credible. City Exhibit 16, which is the Flood Insurance Rate Map, shows that the Coastal Construction Control Line, which marks the landward extent of the Preservation area, is seaward of the subject parcels except where it meets the northwest corner of the northernmost parcel. Although the scale is small, the FLUM conforms to the Flood Insurance Rate Map, as no part of the six parcels appears to be seaward of she Coastal Construction Control Line.

The only contrary evidence is again City Exhibit 2. The aerial photograph depicts the "approximate" location of the Coastal Construction Control Line relative to the "approximate" property lines. The photograph erroneously shows the line crossing the western tips of the two northerly parcels of the four 50-

foot parcels. The exhibit also incorrectly places the west property line of the northernmost parcel considerably east of the west property lines of the two northerly 50-foot parcels, and the west property line of the two southerly 50- foot parcels east of where the line is established by other evidence. City Exhibit 2 is unreliable for the purpose of locating the Coastal Construction Control Line and, thus, the Preservation area.

Evidence that the Coastal Construction Control Line meets the northwest corner of the northernmost parcel also reinforces the finding that the parcel includes at leas part of the 30' strip of Recreation/Open Space. The Preservation area necessarily begins seaward from the point where the Coastal Construction Control Line meets the westerly boundary of the northernmost parcel. Therefore, at this point at least, Recreation/Open Space occupies the portion of the northernmost parcel lying east of this point acre (10:1). All land to the west of the Coastal Construction Control Line is designated Preservation.

8/ The 30' strip designated Recreation/Open Space is only 61' wide or about

.004 acres. Rounding 14.1 units down to 14 units more than amply compensates for the strip.

9/ 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.

10/ Rule 9J-5.0055, which became effective November 22, 1989, uses the word "satisfy" four times and the word "met" three times. This rule deals with the critical issue of concurrency.

11/ Section 163.3161(7).

12/ Section 163.3171(9).

COPIES FURNISHED:

William Sadowski, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

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

Tallahassee, FL 32399-2100

Attorney Thomas W. Reese

123 Eighth Street North St. Petersburg, FL 33701

James A. Devito

Devito and Colen, P.A. 6830 Central Ave., Suite A St. Petersburg, FL 33707

Martin Errol Rice Martin Errol Rice, P.A.

P.O. Box 205

St. Petersburg, FL 33731

David J. Russ, Assistant General Counsel Karen Brodeen, Assistant General Counsel Department of Community Affairs

2740 Centerview Drive

Tallahassee, FL 32399-2100

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-8189GM

Treatment Accorded Proposed Findings of Petitioners 1-2: rejected as subordinate and irrelevant.

3: adopted.

4: rejected as irrelevant and recitation of evidence.

5: rejected as unsupported by the appropriate weight of the evidence. 6-8: rejected as subordinate.

9-10: adopted.

11: rejected as not finding of fact. 12-13: adopted in substance.

14-18: rejected as unsupported by the appropriate weight of the evidence. 19-2: rejected as subordinate.

22: rejected as unsupported by the appropriate weight of the evidence. 23: adopted in substance.

24: rejected as unsupported by the appropriate weight of the evidence. 25-26: adopted in substance.

27: rejected as irrelevant to the issue whether the plan, as amended, is consistent with the criterion of directing population densities away from the CHHA.

28: rejected as irrelevant to issues raised and litigated. 29-30: adopted.

31: rejected as recitation of evidence. 32: adopted.

33: rejected as unsupported by the appropriate weight of the evidence. 34-41: adopted or adopted in substance.

42-43: rejected as unsupported by the appropriate weight of the evidence. 44: rejected as recitation of evidence and subordinate.

45-50: adopted in substance.

51-52: rejected as unsupported by the appropriate weight of the evidence. 53-54: adopted.

55-57: rejected as irrelevant to issues raised and litigated. 58: internal consistency with Coastal Objective 1.9 was not timely raised. Absent evidence establishing, to the exclusion of fair debate, that dunes are located on any of the six parcels, the absence of dune protection measures have no reliance either. 59-60: adopted or adopted in substance.

61: rejected as unsupported by the appropriate weight of the evidence. 62-64: rejected as insubordinate.

65-66: rejected as unsupported by the appropriate weight of the evidence.

Treatment Accorded Proposed Findings of City:

1: rejected as unsupported by appropriate weight of the evidence. 2-3: rejected as recitation of testimony.

4: rejected as irrelevant except to extent of internal consistency issues raised by Petitioners.

5-7: adopted.

Treatment Accorded Proposed Findings of DCA 1: adopted.

2: adopted or adopted in substance except that the 30-foot westerly tip of the northernmost parcel was originally designated

Recreation/Open Space.

3-5: adopted or adopted in substance

6: rejected as unsupported by the applicable weight of the evidence. To the contrary, the evidence establishes that no part of the six parcels lies within the CHHA or Preservation area.

7-10: adopted or adopted in substance.

11: rejected as unsupported by the applicable weight of the evidence. To the contrary, the evidence establishes that the five parcels south of the northernmost parcel are within the Don Cesar Place subdivision.

12-13: adopted or adopted in substance.

14: rejected as unsupported by the applicable weight of the evidence. 15: adopted.

16: adopted in substance to extent relevant. 17: adopted in substance.

Treatment Accorded Proposed Findings of Intervenors 1: adopted.

2-10: rejected as irrelevant. Intervenors proffered proof that the original designation of the six parcels as Low-Medium Density Residential was erroneous. Consistent with the rulings at the hearing, the rejection of these proposed findings is based, in part, upon the legal conclusion that the state of mind of the City Commissioners is irrelevant, at least once the time for challenging the original designations expired without a timely filed petition.

11-13: adopted.

14: rejected as not finding of fact. 15-16: rejected as irrelevant.

17: adopted except as to lack of supporting data and analysis for 30' westerly tip of the northernmost parcel.

18-19: adopted in substance.

20 and 24: rejected as recitation of testimony. 21-23 and 25-34: adopted in substance.

35: rejected as contrary to stipulation, which covered the Shalimar property only.

36 and 38: adopted in substance.

37: rejected as not finding of fact. 39-40: rejected as repetitious.

41-47: rejected as legal argument.

Docket for Case No: 90-008189GM

Orders for Case No: 90-008189GM