STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFF AND LAURA JOHNSON, and ) DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioners, )

)

vs. ) CASE NO. 95-6205GM

)

CITY OF TARPON SPRINGS, )

)

Respondent. )

) LISA L. MACK, and DEPARTMENT OF ) COMMUNITY AFFAIRS, )

)

Petitioners, )

)

vs. ) CASE NO. 95-6206GM

)

CITY OF TARPON SPRINGS, )

)

Respondent. )

)

FINAL ORDER

On March 7 and June 25, 1996, a formal administrative hearing was held in this case in Tarpon Springs, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioners: John A. Shahan, Esquire

Johnson 536 East Tarpon Avenue, Suite 3 Tarpon Springs, Florida 34689

For Petitioner: Lisa Mack, pro se 1/ Mack 23 Central Court

Tarpon Springs, Florida 34689

For Petitioner: Sherry A. Spiers, Esquire

DCA Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

For Respondent: John G. Hubbard, Esquire

City Frazer, Hubbard, Brandt and Trask

595 Main Street Dunedin, Florida 34698

STATEMENT OF THE ISSUE

The issue in this case is whether City of Tarpon Springs Ordinance 94-29 is consistent with the City's comprehensive plan.

PRELIMINARY STATEMENT

On September 19, 1995, Jeff and Laura Johnson and Lisa Mack each filed with the City of Tarpon Springs a petition seeking to have the City's Ordinance 94-29 found to be inconsistent with the City's comprehensive plan. The Mack petition included a ground of alleged improper notice of the public hearing at which the Ordinance was considered and adopted.

When the City did not respond to either petition within 30 days, on October 31, 1995, the Johnsons and Mack each filed a petition with the Department of Community Affairs (DCA) under Section 163.3213, Fla. Stat. (1995).

On December 22, 1995, the DCA issued its Determination of Inconsistency of Tarpon Springs Ordinance 94-29 with the City of Tarpon Springs Comprehensive Plan. The grounds for the DCA's determination included Mack's notice ground.

2/

On December 27, 1995, the DCA forwarded both petitions, together with the DCA's determination, to the Division of Administrative Hearings (DOAH). DOAH assigned DOAH Case Number 95-6205GM to the petition filed by the Johnsons and assigned DOAH Case Number 95-6206GM to the petition filed by Lisa Mack. The cases were consolidated and scheduled for final hearing in Tarpon Springs on March 7, 1996, for three hours, as suggested by the parties.

After five hours of hearing on March 7, 1996, final hearing was not completed and had to be continued. May 3, 1996, was cleared with all parties, and final hearing initially was continued to that date. However, alleging that the May 3 date had not been cleared, the City moved to continue or reschedule due to a conflict on its attorney's calendar. On the understanding that the City had cleared May 31, 1996, for rescheduling, final hearing was again continued. But then the Johnsons complained that May 31 had not been cleared with them, so final hearing was continued again to June 25, 1996. Final hearing was completed on that date.

In its case-in-chief at final hearing on March 7, the DCA called each of the other petitioners (essentially acting as additional counsel for them), 3/ together with a real estate expert, a DCA planner and, as an adverse party witness, the City Manager. DCA Exhibits 1 through 14(2) 4/ were admitted in evidence. In its partial case-in-chief on March 7, the City called its planner and had City Exhibits 1 through 5 admitted in evidence. On June 25, the City recalled its City Manager, called an expert in natural resources ecology and had City Exhibits 6 through 9 admitted in evidence. In rebuttal, the DCA recalled its planner and had DCA Exhibits 14(2) 5/ through 16 admitted in evidence.

Petitioner Mack then was given an opportunity to testify in her own behalf in rebuttal and had Mack Exhibits 1 through 3 admitted in evidence.

After the presentation of the evidence, the parties requested and were given until July 31, 1996, in which to file proposed final orders. The DCA, the City, and Petitioner Mack filed proposed final orders. (The City filed a partial transcript of the final hearing with its proposed final order.)

Explicit rulings on the proposed findings of fact contained in the parties' proposed final orders may be found in the Appendix to Final Order, Case Nos. 95- 6205GM and 95-6206GM.

FINDINGS OF FACT

1. The City of Tarpon Springs Comprehensive Plan (the City's Plan) was adopted by City Ordinance 89-35. The Coastal Zone and Conservation Element of the Plan provides in pertinent part:

   
   

   IT IS THE GOAL OF THE CITY OF TARPON SPRINGS TO:

   1. Preserve, protect and enhance the natural and functional characteristics of the Coastal Management Zone; and to protect human life and limit public expenditures in areas subject to destruction by natural disasters; . . ..

* * *

IT IS THE OBJECTIVE OF THE CITY OF TARPON SPRINGS TO:

9J-5.012(3)(b) - Protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat:

1. Protect the natural resources of the Coastal Management Zone as identified by Schedule A of this Element; (Goal 1) . . ..

* * *

IT IS THE POLICY OF THE CITY OF TARPON SPRINGS TO:

9J-5.012(3)(c)1 - Limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources, and beach and dune systems:

1. Place all wetland areas in the preservation designation as shown on Schedule A, and ensure that no additional loss of wetland vegetation occurs; (Objectives 1, 2 and 11). 6/

2. Require a minimum 30 foot aquatic lands setback for non-water dependent uses along the City's shoreline with the exception of the historic Sponge Dock Area; (Objectives 1 and 11 7/

3. Require a minimum 15 foot buffer zone adjoining all wetlands; (Objectives 1 and 11 8/ ) . . ..

1. Swimming pools and their screened enclosures are "non-water dependent uses" for purposes of Coastal Zone and Conservation Element Policy 2 (Coastal Zone Policy 2).

   
   

2. Data and analysis adopted along with the City's Plan noted that the City would retain its ordinance providing for a 30 foot setback for aquatic lands and wetlands subject to the possibility of a variance under certain conditions on a case-by-case basis. Data and analysis also stated that areas designated for preservation would be preserved in their natural state through use of transfer of density/intensity rights and vegetative buffers and setbacks.

3. City of Tarpon Springs Ordinance 94-29, adopted on September 20, 1994, revised Section 55.01 of the Land Development Code in pertinent part as follows:

   
   

   Wetland and Shoreline Buffers

   1. The following buffers shall be provided:

      1. A shoreline buffer of thirty (30) feet along the Gulf of Mexico, Anclote River, and tributary bayou shorelines. The buffer shall be measured from the mean high tide.

         * * *

         (E) Pools and their pool screened enclosures shall comply with the buffers listed above except where adequate seawalls or rip-rap stabilization exist, the setback requirement shall be 15 feet from the seawall or the landward limit of rip-rap stabilization.

         Pools and pool screened enclosures may be constructed within the required buffer provided a minimum setback of 8 feet is maintained from the seawall and provided that certification from an engineer registered in the State of Florida is submitted prior to issuance of a permit stating that the proposed structure will not effect [sic] the integrity or functioning of

         the seawall or its deadmen.

         
         

4. The "shoreline . . . along the Gulf of Mexico, Anclote River, and tributary bayou shorelines" described in Ordinance 94-29 is included in the Schedule A "natural resources" identified in Coastal Zone Objective 1 and in the "shoreline" identified in Coastal Zone Policy 2. The bayous constitute wetlands required to be preserved under Coastal Zone Policy 1.

   
   

5. At the same time, it is clear that the natural and functional characteristics, marine and other natural resources, and wildlife habitat of City shoreline that has been seawalled or stabilized by rip-rap have been compromised, in many cases severely. Approximately 15 percent of the City's approximately 45 miles of shoreline has been seawalled (approximately nine miles); approximately 5 percent (approximately three miles) has been stabilized by rip-rap. Much of the shoreline seawall within the City has been in place since 1924.

   
   

6. In some cases, seawall has deteriorated to one degree or another, allowing some natural vegetation to begin to reestablish itself. In some cases, natural vegetation (e.g., mangrove) has reestablished itself along entire lot lines. Although no evidence was presented as to rip-rap, it is logical to infer that rip-rap stabilization also may be found in a similar range of conditions. The more that seawall and rip-rap has deteriorated and that natural vegetation has been reestablished, the more natural and functional characteristics, marine and other natural resources, and wildlife habitat can be expected to be restored. At some point (not specified by the evidence) in the process of the deterioration of seawall and rip-rap and the reestablishment of natural vegetation , the regulatory agencies with jurisdiction will not allow the repair and reconstruction of seawall or rip-rap.

   
   

7. Similarly, some natural and functional characteristics, marine and other natural resources, and wildlife habitat might be expected to remain in areas of isolated segments of seawall or rip-rap stabilization.

8. Swimming pools and their screened enclosures constructed under Ordinance 94-29 behind an area of competent seawall or rip-rap stabilization in accordance with would not be expected to have an adverse impact on water quantity or water quality.

   
   

9. As to water quantity, water retention capacity of the pool would approximately compensate for additional run-off from loss of pervious surface. (To the extent that pool construction replaces an impervious surface, a net reduction of run-off would be expected.) Besides, construction of a swimming pool on a residential lot is exempt from surface water management regulations because of the relative insignificance of the impact on run-off.

   
   

10. As to water quality, generally the pollutant loading of water running off a residential lot with a swimming pool probably is less than, or at least the same as and not significantly more than, the pollutant loading of water running off the same lot without a swimming pool. Generally, pool chemicals are retained in the pool whereas lawn fertilizer, pesticides and insecticides often used on residential lawns would be more likely to run off into adjacent water bodies. 9/

    
    

11. According to the evidence presented at final hearing, it is at least fairly debatable that the construction allowed by Ordinance 94-29 would improve the housing stock in the City, increase property values, increase the tax base, and increase and improve the mix of adequate housing. One of the goals of the housing element of the City's Plan is to provide a mix of adequate housing. 10/

    
    

12. The City also presented evidence that one purpose of Ordinance 94-29 was to bring the City's land development regulations (LDR's) into conformity with the LDR's of Pinellas County, which surrounds the City and even has jurisdiction over enclaves within the perimeter of the City's boundaries. However, the DCA presented evidence that the City narrowly focused on the County's zoning regulations and overlooked the County's environmental regulations. The County's environmental regulations require a 50-foot upland buffer from all wetlands other than isolated wetlands, waterways not designated for preservation, and certain County-approved retention ponds.

    
    

13. Jeff and Laura Johnson and Lisa Mack live on lots abutting City shoreline. The Johnsons own their home; Mack does not own her residence. The Johnsons' next door neighbors are building a swimming pool and screened pool enclosure in their back yard under the authority of Ordinance 94-29. At the time of the final hearing, a building permit had been obtained, and the construction of the pool had been virtually completed; only the screen enclosure remained to be built.

    
    

14. In addition to their general interest in Ordinance 94-29 and its impact throughout the City, the Johnsons also have more immediate and direct concerns. They are concerned first and foremost that their next door neighbors' screened pool enclosure, which will be very close to the shoreline, will block their view of Minetta Bayou, especially since the residential lots where they live are very narrow. They also are concerned about loss of privacy due to use of the swimming pool. (The pool is elevated above ground level and quite close to the Johnsons' lot and house, which itself is situated practically on the side lot line.) In addition, they are concerned that noise from the pool pump, as well as from pool users, will disturb their peace and tranquility. Finally, the grading of the ground around the pool may direct more surface water onto the Johnsons' property. 11/

15. Unlike the Johnsons, no pool is being built next door to Mack's residence at this time. Her concern that one might be built there under the authority of Ordinance 94-29 is more remote. She also shares with the Johnsons concern over what would happen to the City, including its shorelines, aquatic lands and water bodies if full advantage is taken of Ordinance 94-29. Much of the City's seawalled and rip-rap stabilized shoreline is in residential areas, and Ordinance 94-29 conceivably could be utilized to build swimming pools and screened enclosures within the 30 foot setback specified in Coastal Zone Policy

    2 on between 500 and 1000 residential lots.

    
    

    CONCLUSIONS OF LAW

    
    

16. Section 163.3202(1), Fla. Stat. (1995), provides that local governments, such as the City, must "adopt . . . land development regulations that are consistent with and implement their adopted comprehensive plan."

    
    

    Standing

    
    

17. Section 163.3213(1), Fla. Stat. (1989), provides:

    
    

    It is the intent of the Legislature that substantially affected persons have the right to maintain administrative actions which assure that land development regula- tions implement and are consistent with the local comprehensive plan.

    
    

18. Section 163.3213(2)(a), Fla. Stat. (1989), provides: "'Substantially affected person' means a substantially affected person as provided pursuant to chapter 120." Although Chapter 120 does not define the term "substantially affected person," Section 120.52(12)(b), Fla. Stat. (1995), provides that any person "whose substantial interests will be affected by proposed agency action" may be a party to proceedings under Chapter 120 (provided the person makes an appearance as a party.)

    
    

19. In this case, Ordinance 94-29 directly affects the residential property where the Johnsons and Lisa Mack live, as well as the property of their immediate neighbors. The Johnsons own their property. It is concluded that the Johnsons and Mack have substantial interests that are affected by Ordinance 94-

    29 and by whether the ordinance is consistent with the City's Plan.

    
    

    Consistency

    
    

20. The Coastal Zone Management and Conservation Element of the plan states that it is the City's policy to "[r]equire a minimum 30 foot aquatic lands setback for non-water dependent uses along the City's shoreline with the exception of the historic Sponge Dock Area"; Ordinance 94-29 makes an additional exception for swimming pools and their screened enclosures where "adequate seawalls or rip-rap stabilization exist . . .." Just comparing the two, one should easily be able to come to the conclusion that the Ordinance 94-29 is not consistent with the Plan policy. But, in fairness to the City, it is appropriate to address the applicable standard of review and the F.A.C. Rule 9J-

24.008 criteria, both of which make reaching that conclusion a bit more involved than would appear on first blush.

Standard of Review

22. Section 163.3213(5)(a), Fla. Stat. (1995), states:

The adoption of a land development regulation by a local government is legislative in nature and shall not be found to be inconsistent with the local plan if it is fairly debatable that it is consistent with the plan.

The fairly debatable test asks whether reasonable minds could differ as to the outcome. To prevail, a petitioner must demonstrate beyond reasonable debate or legitimate controversy that the challenged LDR and the local comprehensive plan are inconsistent. See City of Miami Beach v. Lachman, 71 So.2d 148, 152 (Fla. 1953); Norwood-Norland Homeowners Ass'n, 511 So. 2d 1009, 1012 (Fla. 3d DCA 1987). In most cases, this is a very imposing burden for a petitioner to meet. See Allapattah Community Association, Inc. of Florida v. City of Miami, 379 So.2d 387, 392 (Fla. 3d DCA 1980). 12/ This case is the exception.

9J-24.008 Criteria

1. F.A.C. Rule 9J-24.008 sets out "Criteria for Determining Consistency of Land Development Regulations with the Comprehensive Plan," including in pertinent part:

   
   

   A determination of consistency of a land development regulation with the comprehensive plan will be based upon the following:

   1. Characteristics of land use and development allowed by the regulation in comparison to the land use and development proposed in the comprehensive plan. Factors which will be considered include:

      1. type of land use;

      2. intensity and density of land use;

      3. location of land use;

      4. extent of land use;

      5. other aspects of development, including impact on natural resources.

   2. Whether the land development regulations are compatible with the comprehensive plan, further the comprehensive plan, and implement the comprehensive plan. The term "compatible" means that the land development regulations are not in conflict with the comprehensive plan. The term "further" means that the land development regulations take action in the direction of realizing goals or policies of

      the comprehensive plan. (Criterion (3) is not applicable.)

2. Clearly, there is a difference between Ordinance 94-29 and Coastal Zone Policy 2 that is in question. But otherwise, under the facts of this case, there is nothing about the criteria listed under F.A.C. Rule 9J-24.008(1) that would strongly indicate that the two are inconsistent.

3. As for F.A.C. Rule 9J-24.008(2), it could be argued that the LDR must be evaluated with reference to the entire comprehensive plan to determine if there is conflict and if the LDR "take[s] action in the direction of realizing goals or policies of the comprehensive plan." If so, there could be something to the City's argument that Ordinance 94-29 furthers the purpose and intent of the goals, objectives and policies in the Coastal Zone Management and Conservation Element and in the housing element (or, in any case, to the argument that the point is at least fairly debatable.)

   
   

4. In the context of determining whether a local comprehensive plan is consistent with the Growth Management Act, the court in Machado v. Musgrove, 519 So. 2d 629, 633 (Fla. 3d DCA 1987) stated:

   
   

   The word "consistent" implies the idea of existence of some type or form of model, standard, guideline, point, mark or measure

   as a norm and a comparison of items or actions against that norm. Consistency is the fundamental relation between the norm and

   the compared item. If the compared item is in accordance with, or in agreement with, or

   within the parameters specified, or exemplified, by the norm, it is consistent with it, but if the compared item deviates or departs in any direction or degree from the parameters of the norm, the compared item or action is not "consistent" with the norm.

   
   

5. In utilizing the Machado v. Musgrove definition of "consistency" in the context of this proceeding, it would be necessary to consider the nature of the "norms" against which Ordinance 94-29 must be compared. To do this, one must have clearly in mind just what the various pertinent comprehensive plan provisions are designed to accomplish. Comprehensive plans include goals, objectives and policies. See F.A.C. Rule 9J-5.005(1)(c). "'Goal' means the long-term end toward which programs or activities are ultimately directed."

   F.A.C. Rule 9J-5.003(54). "'Objective' means a specific, measurable, intermediate end that is achievable and marks progress toward a goal." F.A.C. Rule 9J-5.003(86). "'Policy' means the way in which programs and activities are conducted to achieve an identified goal." F.A.C. Rule 9J-5.003(95). In this scheme, rarely if ever will an LDR be found to be inconsistent with a goal for not meeting the goal. Rather, the question will be whether the LDR implements or furthers the goals by making progress towards achieving the goals. By definition, then, an LDR that implements or furthers the goal will be compatible with the comprehensive plan. Even as to objectives, not every LDR will be required to be sufficient, in and of itself, to meet a particular objective. Rather, an LDR can implement or further an objective, and therefore be compatible with it, if the totality of the LDR's and other programs and activities that are in place (or, if the objective requires that it be met at some future date, that may be put in place) are capable of meeting the objective. But a plan's policies require stricter and more immediate adherence in the LDR's. 13/

   
   

6. It is concluded that the Machado v. Musgrove approach to "consistency" should be utilized in this case. Clearly, Ordinance 94-29 conflicts with the "norm" set by the City's Coastal Zone Policy 2. If the City were to win this

   case based on the standard of review and its suggested reading of F.A.C. Rule 9J-24.008, few policies would remain meaningful or certain, and the potential for circumvention of comprehensive plans would be high.

   
   

   Sanctions

   
   

7. Under Section 163.3213(6), Fla. Stat. (1995), a final order finding that a local government's LDR is inconsistent with its comprehensive plan is submitted to the Administration Commission for a hearing on "the extent to which any of the sanctions described in Section 163.3184(11)(a) or (b) shall be applicable "

   
   

8. Under the circumstances of this case, it is not believed that any Section 163.3184(11)(a) or (b) sanctions are necessary, so long as the City promptly either (1) repeals Ordinance 94-29, (2) amends it to be consistent with the City's comprehensive plan, or (3) amends its comprehensive plan so that Ordinance 94-29 will be consistent.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, it is held that City of Tarpon Springs Ordinance 94-29 is inconsistent with the City's comprehensive plan.

DONE and ENTERED this 30th day of August, 1996, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON, 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 this 30th day of August, 1996.

ENDNOTES

1/ At times in this proceeding, it seemed that Petitioner Mack was being represented by the DCA. See footnote 3, infra. At other times, it seemed that she was being represented by Attorney Shahan. See Amended Notice of Appearance of Attorney John A. Shahan for Petitioners Johnson and Mack, filed on March 22, 1996. But, on the record of the final hearing on June 25, 1996, she declared that she was representing herself.

2/ At final hearing, no evidence was presented as to the notice ground; nor was the notice ground presented in proposed final orders. Accordingly, it is deemed to have been abandoned.

3/ See footnote 1, supra.

4/ This exhibit has been renumbered 14(1) because it has been discovered that the DCA had two exhibits marked and received as 14. The other has been renumbered 14(2).

5/ See footnote 4, supra.

6/ Objective 2 deals with the restriction of dredge and fill activities. Objective 11 deals with the maintenance of manmade beach systems and preservation of existing beach and dune systems. There is no indication that these objectives have anything to do with the issues in this case.

7/ See the preceding footnote. 8/ See two preceding footnotes.

9/ As pointed out by Petitioner Mack, it is possible that poolside flower beds and potted plants also could be treated with fertilizer, pesticides and insecticides and that a greater percentage of those contaminants would run off impervious pool decking into adjacent water bodies than would run off a residential lawn. But the greater weight of the evidence was that generally a greater volume of contaminants would run off the same square footage of the average residential lawn than would run off the average swimming pool.

10/ It also is a goal of the housing element of the City's plan to provide "affordable housing." However, the City's argument that such construction also would provide additional "affordable housing" is questionable.

11/ At the time of the final hearing, the City's final inspection had not yet occurred, and it was not clear whether the then-current grading will be maintained, but it seemed that the then-current grading would direct more water onto their property.

12/ Where an administrative proceeding involves a challenge to action of a legislative or quasi-legislative nature, such as in the instant case, unless the statute in question provides otherwise, it is the challenger that bears the ultimate burden of persuasion, notwithstanding that the challenger may not be asserting the affirmative on the issue before the administrative tribunal. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778,

1. (Fla. 1st DCA 1981)(while, as a general rule, the burden of persuasion is on the party asserting the affirmative of an issue in an administrative proceeding, because rule-making is a "quasi-legislative action" deserving of deference, the burden of persuasion is upon those attacking rule-making action to show that it is an invalid exercise of authority).

   
   

   13/ The Plan Administration provisions of the City's comprehensive plan utilize a similar hierarchy of goals, objectives and policies. However, in describing policies, they use the words: "Policies represent the actual programs, activities, or means which are conducted to achieve a desired end." The City Manager in his testimony attempted to attach undue significance to the use of the word "represent," saying that policies only represent "programs, activities, or means" but do not constitute them and therefore allow for less strict adherence in the LDR's than would be expected from the language of F.A.C. Rule Chapter 9J-5. The City Manager's rather strained argument is rejected.

   APPENDIX TO FINAL ORDER

   
   

   To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

   
   

   DCA's Proposed Findings of Fact.

   
   

   1. Accepted and incorporated.

   2. Conclusion of law.

3.-4. Accepted and incorporated.

5.-9. Accepted but subordinate and unnecessary.

10. First sentence, accepted and incorporated; second, accepted but subordinate and unnecessary.

11.-12. Accepted and incorporated to the extent not subordinate or unnecessary.

13. Conclusion of law.

14.-19. Accepted and incorporated to the extent not subordinate or unnecessary.

20. As to the second sentence, the exception is wetlands not designated as preservation; otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

21.-22. Accepted and incorporated.

1. Accepted but subordinate to facts found.

2. Rejected as contrary to the greater weight of the evidence. Also, subordinate.

Petitioner Mack's Proposed Findings of Fact.

1. Conclusion of law.

2. Accepted and incorporated.

3. Accepted but subordinate and unnecessary.

4. Accepted but subordinate and conclusion of law.

5. As to the last sentence, not clear from DCA Exhibit 12 whether all City waterways are Outstanding Florida Waters; otherwise, accepted and incorporated.

6. Conclusion of law.

7. Unclear as to 1981; otherwise, accepted and incorporated.

8. Accepted and incorporated to the extent not irrelevant, subordinate, or unnecessary.

9. First clause of first sentence, and second, accepted and incorporated; otherwise, subordinate and unnecessary.

10.-11. Accepted but subordinate and unnecessary.

1. First sentence, not supported by evidence; second, accepted but subordinate and unnecessary.

2. Last sentence, rejected as contrary to the greater weight of the evidence; otherwise, accepted and incorporated.

3. Rejected as not supported by evidence.

4. Cumulative.

5. In large part, argument and subordinate. Rejected as contrary to the greater weight of the evidence that the City "failed to recognize" all of those considerations; instead, the fundamental disagreement between the City representatives and Petitioner Mack seemed to be as to the significance of those considerations.

6. In part, argument; in part, subordinate to facts found.

7. Accepted; subordinate to facts found.

8. Accepted but subordinate and unnecessary.

9. In part, accepted and incorporated. (It is not clear from Ordinance 94-29 at what point in the process of deterioration a seawall or rip-rap stabilization loses its status as such.) In part, rejected as contrary to the evidence. (The City Manager seemed to testify that run-off would be the least of the homeowner's concerns.)

10. First sentence, accepted and incorporated; second, rejected as not supported by evidence as to the particulars of the variance process.

City's Proposed Findings of Fact.

1.-5. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as contrary to the greater weight of the evidence that the alteration is "irrevocable"; otherwise, accepted and incorporated.

2. Accepted but subordinate and unnecessary.

8.-12. Accepted, but largely irrelevant and subordinate, and unnecessary. (The issue is not whether the Ordinance 94-29 exception to Policy 2 would be logical or desirable but rather essentially whether such an exception legally can be accomplished without a corresponding plan amendment.)

1. Accepted and incorporated to the extent not subordinate or unnecessary.

2. Conclusion of law.

3. As to the housing stock, accepted and subordinate to facts found. Otherwise, accepted, but largely irrelevant and subordinate, and unnecessary. See 8.-12., above.

4. Accepted but subordinate and conclusion of law.

5. Accepted but subordinate and unnecessary.

6. Conclusion of law.

7. Accepted but subordinate and unnecessary.

8. Whether any modified shorelines are ecologically or environmentally sensitive could depend on the condition of the modifications. Otherwise, cumulative.

9. Accepted and incorporated. (However, the City overlooked other pertinent parts of the County's regulations--namely, its environmental regulations. See Finding 13, infra.)

10. Accepted and incorporated.

23.-24. Whether any modified shorelines are ecologically or environmentally sensitive could depend on the condition of the modifications. Otherwise, accepted and incorporated to the extent not conclusion of law, subordinate or unnecessary.

1. Accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted but subordinate and unnecessary.

3. As to the first sentence, since the property in question would be seawalled, there is the potential for water to be directed onto a neighbor's property; otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

4. Accepted and incorporated to the extent not subordinate or unnecessary.

5. Rejected as not supported by the greater weight of the evidence that there is "urban blight" in the area of seawalls or rip-rap stabilization; otherwise, accepted and incorporated.

30.-31. Accepted and incorporated.

1. Rejected as not supported by the greater weight of the evidence that variances were issued "regularly"; otherwise, accepted and incorporated.

2. Accepted but conclusion of law, subordinate and unnecessary. 34.-36. Accepted but subordinate and unnecessary.

1. Accepted and incorporated.

2. Accepted and subordinate to facts found.

3. Accepted and incorporated.

40.-41. Rejected as contrary to the evidence to the extent that: (1) deterioration of a seawall or rip-rap stabilization structure could lead to a restoration of natural functions; and (2) isolated seawall or rip-rap stabilization segments could allow for natural functions. Otherwise, accepted and subordinate to facts found.

1. Rejected as contrary to the evidence to the extent that: (1) deterioration of a seawall or rip-rap stabilization structure could lead to a restoration of natural functions; and (2) isolated seawall or rip-rap stabilization segments could allow for natural functions. Otherwise, accepted but conclusion of law, subordinate and unnecessary.

2. Rejected as contrary to the evidence to the extent that: (1) deterioration of a seawall or rip-rap stabilization structure could lead to a restoration of natural functions; and (2) isolated seawall or rip-rap stabilization segments could allow for natural functions. Otherwise, accepted and incorporated.

3. Maximum buffers in Pinellas County are 50 feet in wetlands; otherwise, accepted and incorporated.

COPIES FURNISHED:

John A. Shahan, Esquire

536 East Tarpon Avenue, Suite 3 Tarpon Springs, Florida 34689

Lisa Mack

23 Central Court

Tarpon Springs, Florida 34689

Sherry A. Spiers, Esquire Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

John G. Hubbard, Esquire

Frazer, Hubbard, Brandt and Trask

595 Main Street Dunedin, Florida 34698

Barbara Leighty, Clerk Administration Commission

Growth Management and Strategic Planning 2105 Capitol

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA ADMINISTRATION COMMISSION

JEFF AND LAURA JOHNSON, and DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioners,

AC Case ACC-96-012

vs. DOAH Case 95-6205GM

CITY OF TARPON SPRINGS,

Respondent.

/ LISA L. MACK, AND THE DEPARTMENT

OF COMMUNITY AFFAIRS,

Petitioners,

DOAH Case 95-6205GM

vs.

CITY OF TARPON SPRINGS,

Respondent.

/

FINAL ORDER

This cause came before the Governor and Cabinet, sitting as the Administration Commission ("Commission") on November 19, 1996 in Tallahassee, Florida, pursuant to Chapter 28-39, Florida Administrative Code, for the issuance of an order on the question of sanctions to be imposed upon the City of Tarpon Springs in light of the Final Order issued by the Honorable J. Lawrence Johnston finding City Ordinance 94-29 inconsistent with the City's Comprehensive Plan.

Tarpon Springs Ordinance 94-29 allows the construction of swimming pools and their screened enclosures within an area otherwise designated as shoreline buffer as long as the structure is behind a adequate seawall or rip-rap stabilization. Two residents of property abutting City shoreline challenged the City Ordinance saying that the exemption for swimming pools is contrary to the City's Comprehensive Plan which is designed to limit the impacts of development on aquatic lands and shoreline. The Final Order states that the city ordinance is not consistent with the comprehensive plan because it fails to adequately limit development impacts upon the subject shoreline.

Pursuant to Section 163.3213(6), Florida Statutes, the Commission shall determine whether sanctions should be imposed upon a local government once a final order of noncompliance is issued by a Hearing Officer. The Department recommended, and we hereby find, that sanctions against the City of Tarpon Springs are not necessary so long as the City, no later than March 1, 1997, either repeals Ordinance 94-29, amends it to be consistent with the City's comprehensive plan, or transmits to the Department of Community Affairs a proposed comprehensive plan amendment so that Ordinance 94-29 will be consistent. The City of Tarpon Springs is directed to provide certified documentation to the Department of Community Affairs and the Administration Commission of its action for a determination of compliance with this Final Order.

The Administration Commission retains jurisdiction to reevaluate the case for consideration of the imposition of sanctions if the City of Tarpon Springs does not proceed within the specified time frame to comply with this Final Order.

Any party to this order has the right to seek judicial review of the order pursuant to Section 120.68, F.S., by the Rules of Appellate Procedure, with the Clerk of the Commission, Office of Planning and Budgeting, Executive Office of the Governor, Room 2105, The Capitol, Tallahassee, Florida 32399-0001; 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 thirty (30) days of the day this order is filed with the Clerk of the Commission.

DONE AND ENTERED this 19th day of November, 1996.

By Teresa B. Tinker for ROBERT B. BRADLEY, Secretary Administration Commission

Filed with the Clerk of the Administration Commission on this 19th day of November, 1996.

Patricia A. Parker

CLERK, Administration Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered to the following persons by United States mail or hand delivery this 19th day of November, 1996.

By Teresa B. Tinker for ROBERT B. BRADLEY, Secretary Administration Commission

Honorable Lawton Chiles Honorable Sandra Mortham Governor Secretary of State

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Milligan Honorable Bill Nelson

Comptroller Insurance Commissioner

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Butterworth Honorable Frank Brogan Attorney General Commissioner of Education

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Crawford Greg Smith, Esquire Commissioner of Agriculture Counsel to Commission The Capitol The Capitol, Room 209

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Sherry A. Spiers John A. Shahan, Esquire Assistant General Counsel 536 East Tarpon Avenue Department of Community Affairs Suite 3

2555 Shumard Oak Boulevard Tarpon Springs, Florida 34689 Tallahassee, Florida 32399-2100

Lisa Mack John G. Hubbard, Esquire

23 Central Court Frazer, Hubbard, Brandt & Tarpon Springs, Florida 34689 Trask

595 Main Street

Jeff and Laura Johnson Dunedin, Florida 34698

30 Central Court

Tarpon Springs, Florida 34689 J. Lawrence Johnston

Administrative Law Judge Florida Administrative Law Division of Administrative

Reports Hearings

Post Office Box 385 The DeSoto Building Gainesville, Florida 32602 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 95-006205GM

Orders for Case No: 95-006205GM