STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT J. STARR, BETTY L. ) BRENNEMAN, and SUZANNE )
NEYLAND, )
)
Petitioners, )
)
vs. ) Case No. 98-0449GM
) DEPARTMENT OF COMMUNITY ) AFFAIRS and CHARLOTTE COUNTY, )
)
Respondents. )
______________________________) JOHN G. COLUMBIA, DANIEL R. ) FLETCHER, EUGENE J. )
HALUSCHAK, and JOHN L. )
HARMON, )
)
Petitioners, )
)
vs. ) Case No. 98-0701GM
) DEPARTMENT OF COMMUNITY ) AFFAIRS and CHARLOTTE COUNTY, )
)
Respondents. )
______________________________) RHONDA JORDAN, )
)
Petitioner, )
)
vs. ) Case No. 98-0702GM
) DEPARTMENT OF COMMUNITY ) AFFAIRS and CHARLOTTE COUNTY, )
)
Respondents. )
______________________________)
EUGENE PLUMMER, )
)
Petitioner, )
)
vs. ) Case No. 98-1634GM
) DEPARTMENT OF COMMUNITY ) AFFAIRS and CHARLOTTE COUNTY, )
)
Respondents. )
______________________________)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Port Charlotte, Florida, on June 1, 2, and 4, July 20 and 21,
and October 19-23, 1998.
APPEARANCES
For Petitioners Starr, Brenneman, and Neyland:
Robert J. Starr, pro se Post Office Box 5337
Grove City, Florida 34224
Betty L. Brenneman, pro se Post Office Box 67 Placida, Florida 33946
Suzanne Neyland, pro se Post Office Box 849
Placida, Florida 33946-0849
For Petitioners Columbia, Fletcher, Haluschak, and Harmon:
John G. Columbia, pro se 2150 Cedarwood Street
Port Charlotte, Florida 33948
Daniel R. Fletcher, pro se Post Office Box 2670
Port Charlotte, Florida | 33949 |
Eugene J. Haluschak, pro | se |
3191 Lakeview Boulevard Port Charlotte, Florida | 33948 |
John L. Harmon, pro se 3083 Beacon Drive Port Charlotte, Florida | 33952 |
For Petitioner Rhonda Jordan:
Rhonda Jordan, pro se 4437 Parmely Street
Charlotte Harbor, Florida 33980 For Petitioner Eugene Plummer:
Robert K. Lewis, Jr., Attorney 6237 Presidential Court
Suite A
Fort Myers, Florida 33919-3508 For Respondent Department of Community Affairs:
Shaw P. Stiller
Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Respondent Charlotte County:
Martha Young Burton Brendan Bradley Carl Kitchner
Renee Francis Lee Assistant County Attorneys Charlotte County
18500 Murdock Circle
Port Charlotte, Florida 33948-1094 STATEMENT OF THE ISSUE
The issue is whether, to the exclusion of fair debate, specific provisions of the Charlotte County comprehensive plan are not in compliance with certain requirements of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
PRELIMINARY STATEMENT
On November 21, 1995, Respondent Charlotte County adopted its Evaluation and Appraisal Report. The preparation of this report requires a local government to examine the extent to which the local government has achieved the goals and objectives and implemented the policies of its current comprehensive plan. In the report, the local government identifies its current planning challenges and strategies for dealing with these challenges. The local government then adopts updating amendments or a new plan. In this instance, Respondent Charlotte County adopted a new comprehensive plan.
Petitioners have challenged various provisions of the new comprehensive plan. As established in the pleadings and at the final hearing, the issues raised by each of the petitioners are stated in the following paragraphs.
Respondents stipulated to the standing of all of the petitioners except Petitioner Plummer.
Petitioners Starr challenge the plan provisions of mandatory connections to central water, as applied to the
bridgeless barrier islands. These provisions are Infrastructure Element Objective 11.3 and Policies 11.3.1 and
11.3.2. Petitioners Starr allege that these plan provisions would force them to disconnect from their individual sources of potable water and connect to a private, for-profit corporation known as Bocilla Utilities, Inc.
Petitioners Starr allege that the plan provisions requiring mandatory connections to central water, as applied to the bridgeless barrier islands, are an inverse condemnation of their private systems of wells and cisterns and impose a financial hardship upon them. Petitioners Starr allege that these plan provisions are inconsistent with the requirement of Section 163.3184(1)(b), Florida Statutes, of consistency with the State comprehensive plan because the plan provisions conflict with Section 187.201(15), Florida Statutes, which is the provision in the State comprehensive plan that assures the protection of private property.
Petitioners Starr allege that the plan provisions requiring mandatory connections to central water, as applied to the bridgeless barrier islands, will promote population growth on these islands, which are outside of the urban service area and inside the coastal high hazard area.
Petitioners Starr allege that this growth will cause increased consumption of potable water on the barrier islands and
increased discharge from island septic tanks and increased runoff of lawn fertilizer and pesticides entering the estuarine waters adjacent to the islands.
Petitioners Starr allege that the plan provisions requiring mandatory connections to central water, as applied to the bridgeless barrier islands, are inconsistent with the requirement of Section 163.3177(2), Florida Statutes, and Rule 9J-5.005(5), Florida Administrative Code, of internal consistency because these plan provisions conflict with Infrastructure Element Goal 11, which is to attempt to eliminate negative impacts to the environment from the use of wastewater systems; Future Land Use Element Objective 3.1, which is to protect private property; Future Land Use Element Objective 1.1, which is to direct at least 90 percent of the urbanized development into the urban service area; and other plan provisions to limit urban sprawl.
Petitioners Starr allege that the plan provisions requiring mandatory connections to central water, as applied to the bridgeless barrier islands, are inconsistent with the criterion of Section 163.3177(8), Florida Statutes, and Rule 9J-5.005(2)(a), Florida Administrative Code, of supporting data and analysis because these plan provisions will increase the amount of discharge from septic tanks and fertilizer- and pesticide-laden runoff entering estuarine waters, increase the
consumption of potable water, necessitate large expenditures of public funds in a coastal high hazard area, adversely impact the environment of and around the bridgeless barrier islands, promote growth on the bridgeless barrier islands and not the urban service area, and promote the location of infrastructure on the bridgeless barrier islands where it is vulnerable to storm damage.
Petitioners Starr allege that the plan is inconsistent with the requirements of Sections 163.3177(6)(g) and 163.3178, Florida Statutes, and Rule 9J-5.012(3)(b)1, 2, 5, and 6 and (c)1, 3, 5, 7, and 8, Florida Administrative Code, of objectives and policies to protect the coastal environment; and Rule 9J-5.011(2)(b)4, Florida Administrative Code, of an objective to conserve potable water resources. In the alternative, Petitioners Starr allege that any objectives or polices in the plan that are consistent with these requirements are inconsistent with the plan provisions requiring mandatory connections to central water, as applied to the bridgeless barrier islands.
Petitioners Columbia challenge the plan provisions requiring mandatory connections to central water and sewer. These provisions are Infrastructure Element Objective 11.3 and Policies 11.3.1 through 11.3.4, 12.1.7, and 12.1.8. The primary targets of this challenge are the plan provisions
requiring mandatory connections to central sewer throughout the county and designating the first twelve areas to receive central sewer.
Petitioners Columbia allege that Respondent Charlotte County adopted the plan in a manner that was inconsistent with the criteria of Rule 9-5.004, Florida Administrative Code, of public participation.
Petitioners Columbia allege that the plan provisions requiring mandatory connections to central water and sewer are an inverse condemnation of their private systems of septic tanks and wells and impose a financial hardship upon Petitioners Columbia. Petitioners Columbia allege that the plan provisions requiring mandatory connections to central water and sewer are inconsistent with the requirement of Section 163.3184(1)(b), Florida Statutes, of consistency with the State comprehensive plan because these plan provisions conflict with Section 187.201(15), Florida Statutes, which is the provision in the State comprehensive plan that assures the protection of private property.
Petitioners Columbia allege that the plan provisions requiring mandatory connections to central water and sewer are inconsistent with the criterion of Rule 9J-5.005(2)(a), Florida Administrative Code, of supporting data and analysis because central sewer will not improve health and safety or
provide other benefits; central sewer will not be superior to properly engineered and installed residential septic tank systems; areas identified for expansion of central sewer are designated based on economic, rather than environmental, grounds; not all septic tank systems to be replaced are operating inefficiently; the assessment of user fees and debt service is not upon the broadest population, but upon current customers; adequate wastewater treatment capacity does not exist to service the expansion areas; the water table will lose recharge from septic tank systems when central systems divert treated wastewater discharge into deep wells and natural waterbodies; the expansion of central sewer and mandatory connections to central sewer are not financially feasible; and the Environmental Protection Agency prefers septic tank systems in residential neighborhoods.
Petitioners Columbia allege that the plan provisions
requiring mandatory connections to central water and sewer are inconsistent with the requirements of Rule 9J-5.016(2)(b) and (c), Florida Administrative Code, of analysis of the fiscal impacts of existing public facility deficiencies and their improvement or replacement; and Section 163.3177(6)(c), Florida Statutes, and Rule 9J-5.011(1)(f)1-4, Florida Administrative Code, of analysis of facility capacity by service area, the general performance of existing facilities,
the suitability soils in areas served by septic tanks, and the problems and opportunities for the replacement, expansion, and development of sewer and water facilities.
Petitioners Columbia allege that plan provisions requiring mandatory connections to central water and sewer are inconsistent with the requirement of Section 163.3177(2), Florida Statutes, and Rule 9J-5.005(5), Florida Administrative Code, of internal consistency because these plan provisions, especially as they identify expansion areas for central sewer, conflict with Infrastructure Element Goal 11, Objectives 11.1 and 11.2, and Policies 11.1.1 through 11.1.6 and 11.2.1
through 11.2.4.
Petitioners Columbia allege that the plan provisions requiring mandatory connections to central water and sewer are inconsistent with the requirements of Sections 163.3177(1) and (2), Florida Statutes, of the prescription of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area; the internal consistency of the plan; and the financial feasibility of the plan.
Petitioners Columbia allege that the plan provisions requiring mandatory connections to central water and sewer are inconsistent with the criteria of Rule 9J-5.011(2)(b), Florida
Administrative Code, of objectives to correct facility deficiencies and to maximize the use of existing facilities.
Petitioners Columbia allege that the plan provisions requiring mandatory connections to central water and sewer are inconsistent with the criteria of Rule 9J-5.016(3)(c)1.f, Florida Administrative Code, of a policy to establish criteria to consider the financial feasibility of the plan; Rules
9J-5.006(3)(b)8 and 9J-5.006(5), Florida Administrative Code, of an objective to discourage the proliferation of urban sprawl; and Rules 9J-5.011(2)(c) and 3, Florida Administrative Code, of policies to establish priorities for the replacement of public facilities, to correct existing facility deficiencies, to provide for future facility needs, to set and use the level of service standards for central wastewater in terms of average and peak flow design capacity for sanitary sewer facilities, and to set and use potable water conservation strategies and techniques. In the alternative, Petitioners Columbia allege that any objectives or policies in the plan that are consistent with these criteria are internally inconsistent with the plan provisions requiring mandatory connections to central water and sewer.
Petitioner Jordan challenges the plan provisions requiring mandatory connections to central sewer. These provisions are Infrastructure Element Objective 11.3 and
Policies 11.3.3 and 12.1.7. Petitioner Jordan alleges that she resides in sewer expansion area A1, which has received a high priority for the delivery of central sewer services.
Petitioner Jordan also challenges the plan provisions designating the first twelve areas to receive central sewer.
Petitioner Jordan alleges that Respondent Charlotte County adopted the plan in a manner that was inconsistent with the criteria of Rule 9J-5.004(2)(e), Florida Administrative Code, of the adoption of a procedure assuring the consideration of, and response to, public comments.
Petitioner Jordan alleges that Respondent Charlotte County adopted the plan in a manner that was inconsistent with the requirement of Section 163.3174(4), Florida Statutes, of assigning certain duties to the local planning agency.
Petitioner Jordan raises generally the issue of public participation as to the substance of the public-participation procedures adopted by Respondent Charlotte County and the County's implementation of these procedures in the adoption of the plan.
Petitioner Jordan alleges that the plan provisions requiring mandatory connections to central sewer are inconsistent with the requirement of Section 163.3177(2), Florida Statutes, and Rule 9J-5.005(5), Florida Administrative Code, of internal consistency because these plan provisions
conflict with Future Land Use Goal 3, Objective 3.1, and Policy 3.1.3, which are to assure the protection of private property; Natural Resources and Coastal Planning Element Objective 1.19 and Policies 1.19.1 and 1.19.2, which are to limit additional public investment in the coastal high hazard area except as necessary to ensure public health and safety; Natural Resources and Coastal Planning Element Objective 1.20, which is to direct population concentrations away from the coastal high hazard area; Natural Resources and Coastal Planning Element Objective 1.4 and Policies 1.4.1 and 1.4.6, which are for Respondent Charlotte County to limit expenditures that subsidize or encourage new land development in the coastal high hazard area; Housing Element Policy 1.3.2.e, which is to develop and implement programs to promote conservation and rehabilitation of low- and moderate-income housing by implementing a Community Redevelopment Area plan for the improvement of residential and other land uses in the Charlotte Harbor area; Capital Improvements Element Policy
1.3.20.a and .i, which are to evaluate capital projects based
on, among other things, the elimination of a public health or safety hazard and the adequacy of funding available to Respondent Charlotte County to operate the facility; Housing Element Policies 2.1.6 and 2.1.7, which are to consider the safety of residents from hurricanes and the dispersal of low-
and moderate-income housing throughout Charlotte County; Infrastructure Element Goal 10 and Policy 10.1.2, which are to maintain adequate levels of service for potable water and sanitary sewer and to require that all improvements to these public facilities meet or exceed the adopted level of service standards for these facilities; Infrastructure Element Goal 11 and Objective 11.1, which are to reduce negative environmental impacts from the use of wastewater systems; and Infrastructure Element Goal 12, Objective 12.1, and Policies 12.1.1, 12.1.6, and 12.1.7, which are to operate the sewer system efficiently and assure that the facilities are sufficient to attain the adopted level of service standards.
Petitioner Jordan alleges that the plan provisions requiring mandatory connections to central sewer are inconsistent with the requirement of Section 163.3184(1)(b), Florida Statutes, of consistency with the State comprehensive plan because these plan provisions conflict with Section 187.201(15), Florida Statutes, which is the provision in the State comprehensive plan that assures the protection of private property.
Petitioner Jordan alleges that the plan provisions requiring mandatory connections to central sewer are inconsistent with the requirement of Section 163.3177(8), Florida Statutes, and Rule 9J-5.005(2)(a), Florida
Administrative Code, of supporting data and analysis because mandatory sewer connections are not predicated upon findings of the condition of the septic tank systems and the relative superiority of centralized wastewater treatment, especially in the A1 and A2 sewer expansion areas; the area between the A1 and A2 sewer expansion areas is characterized by low-income housing served by pre-1983 septic tank systems; centralized wastewater treatment facilities are inadequate to handle the wastewater to be generated by the newly connected areas; the sewer expansion project is not financially feasible, especially in light of the proposed cost of $4000 per connection and relative low-income of the residents of sewer expansion areas A1 and A2; the new central wastewater collection system will store waste solids onsite in low-lying areas that are subject to damage from coastal storms; and sewer expansion areas A1 and A2 are in the hurricane vulnerability zone and coastal high hazard area, so they are especially vulnerable to damage that would allow stormwater intrusion into the central sewer system.
Petitioner Jordan alleges that the plan provisions
requiring mandatory connections to central sewer are inconsistent with the criteria of Rule 9J-5.010(2)(b), (d), (e), and (f), Florida Administrative Code, of analysis of the need for affordable housing, the portion of the housing need
that the private market can meet, problems and opportunities in the existing housing-delivery system, means of accomplishing the provision of housing (especially affordable housing) with supporting infrastructure, the elimination of substandard housing conditions, the provision of adequate sites for low-and moderate-income housing and mobile homes, the provision of adequate sites in residential areas for group homes and foster care facilities, and the identification of conservation, rehabilitation, or demolition activities; Rule 9J-5.006(2)(e), Florida Administrative Code, of analysis of the proposed development and redevelopment of floodprone areas; Rule 9J-5.012(2)(e)3, Florida Administrative Code, of the identification and inventory of coastal high hazard areas and the potential for the relocation of vulnerable infrastructure; and Rule 9J-5.016(2), Florida Administrative Code, of analysis of capital improvements.
Petitioner Jordan alleges that the plan is inconsistent
with the requirements of Section 163.3177(2), Florida Statutes, of economic feasibility; Section 163.3178(1), Florida Statutes, and Rule 9J-5.012(3)(a), Florida Administrative Code, of an objective to restrict development activities that damage coastal resources, protect human life, and limit public expenditures in areas subject to natural disasters; Section 163.3177(6)(g)7, Florida Statutes, and Rule
9J-5.012(3)(b)5, Florida Administrative Code, of an objective to limit public expenditures that subsidize development in coastal high hazard areas; Rule 9J-5.012(3)(b)6, Florida Administrative Code, of an objective to direct population concentrations away from coastal high hazard areas; Rule
9J-5.012(3)(c), Florida Administrative Code, of policies to reduce the exposure of human life and public and private property to natural hazards, to designate coastal high hazard areas and limit development in these areas, and to relocate, mitigate, or replace (as deemed appropriate by the local government) infrastructure presently in the coastal high hazard area when state funding is anticipated to be needed; Rule 9J-5.016(3) and (4), Florida Administrative Code, of objectives and policies within the capital improvements element and their implementation; and Section 163.3177(6)(f)1.g, Florida Statutes, of an objective to avoid the concentration of affordable housing. In the alternative, Petitioner Jordan alleges that any objectives or policies in the plan that are consistent with these criteria are internally inconsistent with the plan provisions requiring mandatory connections to central sewer.
Petitioner Plummer challenges the sufficiency of the plan
provisions addressing historic resources, historic districts, and historically significant properties.
Petitioner Plummer alleges that he is the president of The Historical Knights Bldg., Inc. Indicating that the style of the petition incorrectly identifies only Eugene Plummer as the petitioner, the petition alleges that "Petitioner, The Historical Knights Bldg., Inc." maintains its principal office in Port Charlotte, Florida, and that "The Historical Knights Bldg. has standing to file this petition . . .." The petition also alleges that The Historical Knights Bldg., Inc. owns two lots in Charlotte County known as the Mott Willis Building.
An amendment to the petition filed on June 4, 1999, adds that Eugene Plummer is a resident of Charlotte County. DOAH Case No. 98-1634GM therefore has two petitioners: Eugene Plummer and The Historical Knights Bldg., Inc.
Petitioners Plummer allege that the Charlotte County Historic Preservation Board has identified the Mott Willis Building as "historically significant." Petitioners Plummer allege that the Mott Willis Building is listed in the National Register of Historic Places, but Respondent Charlotte County demolished the building on February 20, 1998.
Petitioners Plummer allege that the plan is inconsistent with the requirement of Section 163.3177(6), Florida Statutes, of identifying historically significant and other housing for purpose of conservation, rehabilitation, or replacement.
Petitioners Plummer allege that the plan is inconsistent with
the requirement of Section 163.3184(1)(b), Florida Statutes, of consistency with the State comprehensive plan because of the failure of the local plan to preserve historical properties. Petitioners Plummer allege that Respondent Charlotte County failed to comply with Conservation and Aquifer Recharge Element Objective 15, which is to protect all known historical and archaeological sites and structures until the State Bureau of Historic Preservation assesses the significance of the property. The reference to Conservation and Aquifer Recharge Element Objective 15 is to an element contained in the former plan; when given the opportunity at the hearing to update this reference to a similar provision in the current plan, Petitioners Plummer declined to do so, effectively abandoning this allegation.
The petition alleges that the plan is inconsistent with the requirements of Section 163.3177(6)(f)1.e, Florida Statutes, to include an operative provision to identify historically significant housing for purposes of conservation, rehabilitation, or replacement; Section 163.3177(6)(g)10, Florida Statutes, to include a policy to preserve or sensitively adapt and use historic and archaeological resources; Rule 9J-5.006(4)(a)10, Florida Administrative Code, to depict on the future land use map historic district boundaries and designated historically significant property
meriting protection; and Rule 9J-5.006(1)(a)11, Florida Administrative Code, to depict on the existing land use map historic resources.
At the hearing, Petitioners Starr called seven witnesses and offered into evidence Starr Exhibits 1-9; Petitioners Columbia called seven witnesses and offered into evidence Columbia Exhibits 1-25; Petitioner Jordan called no witnesses and offered into evidence Jordan Exhibits 1-14; Petitioners Plummer called one witness and offered into evidence Plummer Exhibit 1; Respondent Department of Community Affairs called three witnesses and offered into evidence DCA Exhibits 1-6; and Respondent Charlotte County called 14 witnesses and offered into evidence County Exhibits 1-74. Additionally, 11 members of the public testified and offered into evidence Public Exhibits 1-6. (The transcript omits the testimony of John G. Mulholland, who opposed the mandatory sewer connection ordinance as violative of his constitutional rights and home rule and, at $100 monthly, more than he can afford to pay.) All exhibits were admitted except Columbia Exhibits 12 and 14, Jordan Exhibit 9, DCA Exhibit 2, and County Exhibits 20 and
45. The parties proffered all of the excluded exhibits.
The court reporter filed the Transcript on August 6, 1999.
FINDINGS OF FACT
Background
Introduction
Charlotte County
Charlotte County is located in Southwest Florida. It is bordered on the south by Lee County, north by Sarasota and DeSoto counties, west by the Gulf of Mexico, and east by Glades County. Charlotte County comprises 693.7 square miles of land and 129 square miles of water--mostly Charlotte Harbor and its tributaries. Although only 18 miles in length from north to south, Charlotte County contains 120 miles of coastline.
Charlotte Harbor and its two main tributaries physiographically divide the Charlotte County into eastern, central, and western portions. The eastern portion of the County is bounded on the west by the Peace River and Charlotte Harbor. The eastern portion of the County contains Punta Gorda, which is the sole municipality in Charlotte County. Punta Gorda abuts the southern bank of the mouth of the Peace River and the bank along the northeast corner of Charlotte Harbor.
The central portion of the County is bounded on the east by the Peace River, the south by Charlotte Harbor and the Peace River, and the west by the Myakka River. The central portion of the County contains Port Charlotte, which is the
major, unincorporated town center in Charlotte County. Port Charlotte encompasses the area from the mouth of the Peace River to the area of the intersection of State Route 776 and
U.S. Route 41, although the specific area of this intersection is sometimes referred to as Murdock. The community at the northern bank of the Peace River at U.S. Route 41 is known as Charlotte Harbor. Between the community known as Charlotte Harbor and Interstate 75 is the community known as Harbor View. Farther upstream the Peace River, but still on its north and west bank, and east of Interstate 75, is the community known as Harbor Heights. The central portion of the County also contains large areas of urbanized development-- west of Interstate 75, south of State Route 776, and on both sides of U.S. Route 41--that are served by septic tanks or package plants.
The western portion of the County is bounded on the east by the Myakka River and Charlotte Harbor, the south by Charlotte Harbor and Gasparilla Sound, and the west by Gasparilla Sound, Placida Sound, and Lemon Bay, which separate the mainland from the County's coastal barriers. Most of the western portion of the County is also known as the Cape Haze Peninsula. The western portion of the County also contains the coastal barriers dividing Lemon Bay, Placida Sound, and Gasparilla Sound from the Gulf of Mexico to the west. The
western portion of the County contains large areas of urbanized development that are served by septic tanks or package plants. These areas are mostly north and west of the Rotonda, which occupies the center of the Cape Haze Peninsula, and south of Englewood, which is a community immediately north of the county line.
Charlotte Harbor (including Gasparilla Sound) is an aquatic preserve totaling about 270 square miles (a small part of which is in Lee County). Charlotte Harbor is the second largest estuary in Florida.
The water quality of Charlotte Harbor is "fair to good" with "somewhat lower water quality" along the eastern shoreline of the harbor and at the mouths of the Myakka and Peace rivers. Natural Resources and Coastal Planning Element (Natural Resources Element), p. 3-15. Human impacts to these waters have depressed water clarity and elevated concentrations of bacteria, nutrients, and suspended sediments. Phytoplankton productivity is typically limited by the amounts of available nitrogen, as relatively high levels of phosphorus are available from the Peace River watershed, but the limiting factor in certain regions of the tidal rivers, which also have relatively high levels of nitrogen, is light availability.
The "most severe threats to water quality and natural systems in Charlotte Harbor" are "population growth and urbanization," which are focused along the coastline of the harbor, and mining, chemical processing, and agricultural activities, which apply to all surface waters in the watershed. Natural Resources Element, p. 3-19.
Gasparilla Sound separates Charlotte Harbor from Lemon Bay, which is an aquatic preserve and an Outstanding Florida Water. Lemon Bay is a narrow, 12 square-mile body of water running about 13 miles between the coasts of Charlotte and Sarasota counties and the coastal barriers, which range from 1/8th of a mile to 1.2 miles off the mainland.
The average depth of Lemon Bay is six feet at mean high water. The water quality of Lemon Bay is "generally good," but only fair to poor for dissolved oxygen and fecal coliform bacteria in the bay waters and mouths of the tributary creeks. The urbanized creeks of the Englewood area also have high nutrient levels. Natural Resources Element, p. 3-23.
Charlotte County is relatively low-lying with
elevations from 0 feet at the Gulf coastline to 75 feet in the northeast section. However, the highest areas of the County are in the extreme eastern end of the County, which is very lightly populated and bears relatively low densities on the
Future Land Use Map (FLUM). Nearly the entire population of Charlotte County resides at elevations of less than 15 feet. Natural Resources Element, Map 3.13.
County soils are poorly drained, so that 97 percent have "severe limitations" for septic tank drainfields. Future Land Use Element (FLUE), pp. 1-5 and 1-49. The only soil rated as "moderate" for septic tank drainfields is Orsino fine sand, which covers less than one percent of the County--mostly along the Prairie Creek and Alligator Creek east of U.S. Route
Infrastructure Element, p. 4-138.
Most of the County is susceptible to flooding; the 100-year floodplain encompasses most of the urbanized area of the County. On June 23, 1995, for instance, a cluster of thunderstorms not associated with a tropical storm or hurricane produced 15 inches of rain over nine hours. The resulting flood damaged $2.5 million of public property (mostly roads, but including a 12-inch water main that was first exposed and then ruptured by rushing water) and $1 million of private property.
As reflected on Natural Resources Element Map 3.16, nearly the entire coastline, including that along Charlotte Harbor, is within the hurricane vulnerability zone for a Category 1 hurricane; in fact, most of the coastline is within the hurricane vulnerability zone for merely a tropical storm.
The County has designated areas within the hurricane vulnerability zone for Category 1 and tropical storms as its Coastal High Hazard Area (CHHA). FLUE, p. 1-64. Except for parts of the northern end of the central part of the County and the southern end of the eastern part of the County, the entire County west of Interstate 75 is in the hurricane vulnerability zone for all storms up to a Category 3 hurricane.
According to FLUE Map 1.17, the CHHA is extensive in Charlotte County. For the western part of the County, the CHHA encompasses all of the barriers and nearly the southern half of the Cape Haze Peninsula. For the central part of the County, the CHHA encompasses nearly one-quarter of the coastal area between State Route 776 and U.S. Route 41, a thin band to the east (along the northern end of Charlotte Harbor and the north bank of the Peace River), and a thicker band to the west along the north bank of the Myakka River. For the eastern part of the County, the CHHA encompasses a thin band along the east bank of the Peace River and along the northern end of Charlotte Harbor around Punta Gorda and a thicker band along the remainder of the east bank of Charlotte Harbor south of Punta Gorda.
Running parallel to the coast, parts of two coastal barriers--one a peninsula and the other an island--and a
bridgeless barrier island chain separate the Cape Haze Peninsula from the Gulf of Mexico. The northernmost coastal barrier is Manasota Key, which is a peninsula connected to the mainland in Venice. The southern 4 miles of Manasota Key are in Charlotte County. The southernmost barrier is Gasparilla Island, which is an island. The northern 1.8 miles of Gasparilla Island are in Charlotte County. Manasota Key and Gasparilla Island are connected by roads to the Cape Haze Peninsula.
Located between Manasota Key and Gasparilla Island is a chain of bridgeless barrier islands known, from north to south, as Thornton Key, Knight Island, Bocilla Island, Don Pedro Island, and Little Gasparilla Island (Don Pedro island chain). (Sometimes Palm Island is added to this list, although it may signify an alternative name rather than another historic island.) At present, the Don Pedro island chain is connected by land, but these islands can be separated by water in very high tides and were more continually separated by water in the recent past. Stump Pass divides the Don Pedro island chain from Manasota Key, and Gasparilla Pass divides the Don Pedro island chain from Gasparilla Island. About 90 percent of the Don Pedro island chain is within the hurricane vulnerability zone for a tropical storm.
The Don Pedro island chain is part of a highly dynamic system. For example, Stump Pass has migrated south
1.3 miles over a 100-year period ending in 1984. With respect to the area within Charlotte County, Manasota Key contains 59 acres of active dunes, the Don Pedro island chain contains 228 acres of active dunes, and Gasparilla Island contains 24.3 acres of active dunes. Natural Resources Element, p. 3-148.
The widths of all three coastal barriers vary from
80 to 2000 feet. The northern two miles of Manasota Key have withdrawn up to 100 feet during the last century. The southernmost mile has recently been even more dynamic, eroding
40 to 170 feet from 1953 to 1975. The area in between built up 20 to 40 feet during the last century. Similarly, areas of erosion and accretion characterize different parts of Gasparilla Island in Charlotte County.
The Don Pedro island chain has been cut by at least five different inlets in the 100-year period ending in 1981. Inlets or passes now closed are former Bocilla Pass on Knight Island, Blind Pass between Knight and Don Pedro islands, and Little Gasparilla Pass between Don Pedro and Little Gasparilla islands. With respect to the Don Pedro island chain, the County states: "Generally, the beach areas one-half to 1 mile north and south of inlets are the most dynamic of all on barrier islands and must be considered high-hazard zones for
any structures. Low elevations make the island vulnerable to flooding." Natural Resources Element, p. 3-148.
The Don Pedro island chain provides about 12.5 miles of Gulf shoreline and is separated from the mainland by as little as 200 feet of water. A bridge ran to the islands until removed by the Army Corps of Engineers in the 1960s during construction of the Intracoastal Waterway.
Beach renourishment projects have enjoyed different levels of success in meeting the expectations of their engineers. In the most recent such project, Palm Island Resort conducted a relatively small project at the north end of its island in 1995, but the additional sand naturally transported offsite within one year. Natural Resources Element, pp. 3-153 and 3-159.
2. County's Planning Challenges
Although generally in good condition, the surface waters of Charlotte County present a planning challenge to Charlotte County, which attempts to "continue to provide water for all the various human needs--residential, agricultural, and industrial--without damaging the natural systems which supply the water and make Florida a desirable place in which to live." Natural Resources Element, p. 3-40. The County recognizes that the "primary threats to [its] surface waters include non-point source pollution generated by urban and
agricultural runoff, leachate from septic tanks and package wastewater treatment plants, erosion from improper land clearing activities, upstream sources of contamination (particularly phosphate mining in the Peace River Basin), and historic construction of dead-end finger canals." Id.
The planning challenges faced by Charlotte County are complicated by its self-described status, with such other communities as Cape Coral and Lehigh Acres, as a "platted lands" community. During the 1950s, 1960s, and 1970s, large- scale developers platted vast amounts of land into individual lots and sold them to large numbers of persons.
Among the most notable developers of Charlotte County land were the Mackle Brothers and General Development Corporation (GDC), which has been succeeded by Atlantic Gulf Communities Corporation. GDC subdivided the 185 square-mile Port Charlotte subdivision--nearly one-sixth the area of Rhode Island--in the central and western parts of the County, as well as in adjacent Sarasota County. The portion of this massive subdivision in Charlotte County contains 118,254 lots and parcels, of which 88,543, or about 75 percent, remain vacant.
Another notable developer was the Cavanaugh Leasing Corporation of Miami, which developed Rotonda West. Marketed as a "self-contained circular community of 50,000," the
Rotonda West development, with its surrounding subdivisions, totals 26,260 lots, of which 24,226 remain vacant.
Seven subdivisions, including the two already noted, account for 186,001 total lots, of which 145,639 remain vacant. As acknowledged in the FLUE data and analysis in the comprehensive plan:
The overplatting of land has made achieving growth management objectives very difficult. For the most part, development has followed the extension of potable water lines in Charlotte County. Therefore, the provision of infrastructure appears to be the most effective tool for directing where, when, and at what intensity development will proceed. The growth management strategy within this comprehensive plan utilizes the provision of infrastructure as the primary tool for managing growth and development in Charlotte
County. It is referred to as the Urban Service Area strategy.
FLUE, p. 1-13.
Of the total of 443,968 acres of existing land uses in Charlotte County, the five largest categories are agricultural--229,695 acres; park, recreation, or refuge-- 91,269 acres; vacant-60,317 acres; other (such as roads, canals, and lakes)--33,224 acres; and residential--18,844 acres. Commercial land uses total only 1337 acres--less than the 2814 acres in mining and 1501 acres in industrial. FLUE, Table 1.9. Over 80 percent of the County's assessed valuation is derived from residential properties, which is the highest
proportion in Florida, for which the average is only 66 percent. FLUE, p. 1-68.
The magnitude of the planning challenges confronted by Charlotte County is largely driven by residential development. The County's population grew in the 1980s from 58,460 to 110,975, doubling as it has in every decade since the 1950s. FLUE, Chart 1.1. During the 1980s, Charlotte County led the nation in population growth with nine percent annual increases. FLUE, p. 1-67.
The population of Charlotte County is largely elderly; in 1990, one-third of the residents were at least 65 years old. FLUE, Chart 1.4. No other county in Florida has a greater percentage of residents at least 65 years old, and only one county in the United States has a higher percentage of residents at least 65 years old. Almost half of the County's population is over the age of 54 years; its median age of 53.7 years is the highest in Florida. The large population growths experienced by Charlotte County are due to a net in-migration because the County had 2904 more deaths than births between 1990 and 1994.
County personal incomes are bunched in the middle.
Only 7.5 percent of County households live below the poverty line, which is second lowest in Florida. But only 5.8 percent of County households have incomes over $75,000; the average in
Florida is 10 percent. Charlotte County has a low labor force participation rate (42 percent versus the Florida average of
60 percent), and County employment is concentrated in the low- paying areas of retail, services, and construction (85 percent versus the Florida average of 60 percent). FLUE, p. 1-67. Combining these factors with the 62nd lowest millage rate in Florida and few industrial and commercial properties on the tax rolls leaves Charlotte County with a fairly narrow tax base. FLUE, p. 1-68.
All of these conditions contribute to the difficulty of meeting the planning challenges presented by extremely large numbers of prematurely platted lots. As the County has addressed this problem:
There are no absolute solutions for the problems associated with the premature platting and sales of land. When the original developers go bankrupt, as many inevitably do, local governments, taxpayers, and ratepayers are left with the bill. Must they honor the obligations made by the original developer? Can a local government simply turn its back upon those customers?
There are no easy answers to these questions which have legal, political, and economic implications.
FLUE, p. 1-100.
3. County's Planning Strategies
After reviewing several possible planning strategies, the County chose the Urban Service Area (USA)
strategy as the key component of its overall strategy to deal with the problem of large numbers of prematurely platted lots, FLUE, p. 1-104, and its "primary growth management tool." FLUE, p. 1-132.
The County has refined its urban-containment strategy since adopting its first comprehensive plan under the 1985 Local Government Comprehensive Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (Chapter 163), in 1988. In the 1988 plan, Charlotte County adopted an "urban growth boundary" that encompassed all of the platted lands within a 215 square mile area. FLUE, p. 1-132.
In 1989, Respondent Department of Community Affairs (DCA) challenged the 1988 plan largely on the ground that it did not discourage urban sprawl. Following a lengthy hearing, Charlotte County and DCA entered into a Joint Agreement on Remedial Actions and Sanctions. On March 15, 1990, the Administration Commission entered a final order determining that portions of the 1988 plan were not in compliance with Chapter 163 and incorporating the remedial agreement into the order. Implementation of the agreement was difficult, and the Administration Commission did find the plan to be in compliance until May 1994.
The main theme of the remedial actions was to encourage development where public facilities are available
and physical conditions are most suitable and discourage development of other areas within the County. Accordingly, Charlotte County decreased densities in outlying areas, including the Don Pedro island chain.
Establishing the USA as the major part of its urban- containment strategy, the County reduced the former urban growth area by 28 square miles. Even so, the still-vast 187 square-mile USA encompasses nearly the entire County west of Interstate 75 and about 25 square miles east of Interstate 75. FLUE, p. 1-133 and FLUM Series No. 2. The USA is divided into
97 square miles of Infill Areas (13 of which are in Punta Gorda) and 90 square miles of Suburban Areas.
The designation of 84 square miles of Infill Areas within the unincorporated County better corresponds to the 79 square miles projected to be needed for residential growth through 2010. However, this growth management strategy likely will not result, in the planning timeframe, in compact urban development featuring viable mixed uses in functional proximity to each other due to three factors: the large numbers of already-sold platted lots, the lack of resources to confront this problem more directly, and the urbanization-- almost inevitably in an inefficiently sporadic pattern due to the excessive designated densities as compared to the
projected population growth--of an additional 90 square miles of Suburban Area within the USA.
The County's ability to discourage urban sprawl is compounded by two limitations upon its ability to control the provision of infrastructure: the prevalence of private utilities providing central sewer and water services and the prevalence of Municipal Services Taxing Units (MSTUs) and Municipal Services Benefits Units (MSBUs) funding road and drainage projects. Although the use of MSTUs and MSBUs to provide the infrastructure crucial to guiding the location and timing of urbanization is obviously not unique to Charlotte County, the extensiveness of these alternative means of providing such infrastructure may be.
The County's ability to control the timing of the extension of central water and sewer expanded with the 1991 acquisition of General Development Utilities. However, 12 of the 14 utilities supplying potable water in Charlotte County are privately owned. Infrastructure Element, p. 4-106. According to Infrastructure Element Map 4.23, the certificated territory of Charlotte County Utilities covers about 70 percent of the central portion of the County and about 20 percent of the western portion of the County. The City of Punta Gorda has the certificated territory for the relatively small area of the eastern portion of the County that is served
by central water. Infrastructure Element Table 4.18 indicates that, in 1995, Countywide average daily demand was 14,605,950 gallons of potable water, including Charlotte County Utilities with an average daily demand of 6,070,990 gallons and the City of Punta with an average daily demand of 3,168,000 gallons.
Thus, private utilities supply a little more than one-third of the potable water in the entire County.
The situation is worse with respect to central sewer. Two public utilities and seven private utilities supply central sewer. Infrastructure Element Map 4.26 indicates that the certificated territories for central sewer are much smaller than are those for central water. Relatively little of the western portion of the County has central sewer, and the territory of Charlotte County Utilities is significantly smaller than the territory served by Rotonda West Utilities Corp. For the central portion of the County, the territory of Charlotte County Utilities is significantly larger than that of the other major utility, Florida Water Services Corp.--Deep Creek. The City of Punta Gorda has most of the territory for central sewer in the eastern part of the County. Average daily demand in 1995 totaled 6,283,960 gallons including Charlotte County Utilities receiving 1,950,470 average gallons daily and the City of Punta Gorda receiving 2,038,580 average gallons daily. Thus, private
utilities treat a little more than two-thirds of the wastewater, although, considering the 514,300 average gallons daily treated by package treatment plants (Infrastructure Element, Table 4.25), the share of the private utilities is a little less.
A precursor to community development districts, for which developers form entities for the construction and operation of certain public facilities, such as roads and drainage, MSTUs and MSBUs are also means by which residents receiving certain services pay for those services, primarily roads and drainage. An MSTU differs from an MSBU because the former imposes an ad valorem tax and the latter imposes a tax based on other factors. Capital Improvements Element, p. 8-9.
As the County notes, "[t]he extent of the County's use of MSTUs and MSBUs is unique in Florida and perhaps in the country." Capital Improvements Element, p. 8-8. Both sources of revenue funded about $7.2 million in local roads and drainage in 1995-96. Capital Improvements Element, p. 8-8. This is a significant source of funding for roads and drainage. For the five fiscal years ending in 2002, the total County expenditures for "street/drainage/waterways/other projects" are $10.7 million and for "road improvements/M&O" (presumably maintenance and operation) are $59.4 million/ during the same five-year period, MSBUs and MSTUs provide
$10.6 million of total revenues of $174.7 million. Capital Improvements Element, Capital Improvement Program, p. C-2. Thus, unless a portion of the $5.6 million in "natural resources" expenditures during this five-year period are allocated to drainage, MSTUs and MSBUs provide all of the funds for County-funded drainage projects and an undeterminable percentage (due to the grouping of streets, drainage, waterways, and other projects under one item)-- substantially less than 15 percent--of the funds for County- funded road projects. Id. As the County observes, "[t]he use of the rural MSBUs makes living in rural Charlotte County competitive with living in the [USA] and detracts from the ability to contain growth within the [USA]." Capital Improvements Element, p. 8-9.
Public Participation
The planning process that culminated in the new plan began with the County's preparation of its Evaluation and Appraisal Report (EAR). In this process, the County evaluated the success of its plan, identified any new planning challenges that it faces, and developed new planning strategies to meet these challenges.
Charlotte County began the EAR process in 1993.
Completing the EAR in 1995, the County transmitted it to the
Southwest Regional Planning Council, which determined in January 1996 that the EAR was legally sufficient.
In developing a new plan based on the EAR, the County conducted 115 public meetings from 1995-97. All interested persons could speak at these meetings. Additionally, County residents had an unusual opportunity for input into the plan because of the County's reliance on the Charlotte Assembly, whose membership represented a broad range of County residents who wanted to participate directly in the preparation of a new plan. The Charlotte Assembly worked on the plan from October 1996 through the summer of 1997.
On March 18, 1997, the County Commissioners transmitted the proposed plan to DCA. Following receipt of the report of DCA's objections, recommendations, and comments, the County Commissioners adopted the plan on October 7, 1997.
There is no evidence in the record of any shortcomings in the contents of the public-participation procedures adopted by Charlotte County, nor in its implementation of these procedures in the planning process that produced the plan.
Standing of Petitioners Plummer
Eugene Plummer (Plummer) is the president of The Historical Knights Bldg., Inc. He owns a majority of the shares of the corporation, which owns the real property
located at 2600 Bayshore Boulevard (the Site). The Site is in the Charlotte Harbor Redevelopment Area.
At the time of the hearing, a two-story building constructed in 1923 was located at the Site, as well as the Knight Dock, from which Confederate forces had shipped cattle during the War Between the States. However, several months prior to the hearing, in February 1998, the County had razed an older building located at the Site known as the Mott Willis Building.
The Mott Willis Building was originally constructed as the first general store in Charlotte County. At different times, Mr. Willis and members of the Knight family lived upstairs. In the 1920s, the original building was enlarged by its envelopment within a larger general store, which had fallen into disrepair for the 20 years preceding its demolition. At the time of its demolition, the Mott Willis Building was unsafe, although Plummer had identified several possible sources of funding a rehabilitation effort to convert the building to a children's theater, after which he and his corporation intended to donate the building to the County.
There is no doubt of the historic significance of the Mott Willis Building. On December 16, 1993, the County passed an ordinance designating the Mott Willis Building as historically significant. In 1996, the building was listed in
the Florida Master Site Plan. And, on May 30, 1997, the Mott Willis Building became the first building in Port Charlotte to be listed in the National Register of Historic Places.
Plummer testified that the petitioners in DOAH Case No. 98-1634 are he and The Historical Knights Bldg., Inc. (Tr. p. 179.) Plummer testified that he attended code enforcement hearings in connection with the demolition of the
Mott Willis Building. He estimated that the hearings ended in 1996. (Tr. p. 180.) He testified that he never appeared before the County Commission, but sent them a letter. In response to a question asking when he sent the letter to the County Commission, Mr. Plummer answered, "It was back
earlier"--in apparent reference to the hearings of the Code Enforcement Board. (Tr. p. 180.) In response to the next question--"How far back in relation to the code enforcement board hearings?"--Mr. Plummer replied, "It was after." He testified that he had a copy of the letter and offered to bring it to the hearing on a subsequent day, but did not do so.
The County received no document from Plummer or The
Historical Knights Bldg, Inc., containing objections, recommendations, or comments concerning the plan during the review and adoption period, which was from March 18 to October 7, 1997. Plummer never personally addressed the County
Commission during this period, nor any other earlier period, concerning the preservation of the Mott Willis Building.
However, the preponderance of the evidence supports the finding that, in the months immediately preceding the demolition of the Mott Willis Building, including the period between March 18 and October 7, 1997, Plummer presented to the Code Enforcement Board objections, recommendations, and comments concerning the imminent demolition of this building. The preponderance of the evidence, including reasonable inferences, establishes that Plummer's objections, recommendations, and comments included a claim that the Board, using the power of the County, was proposing the demolition of the building in violation of provisions of the former comprehensive plan, including a provision of the Conservation and Aquifer Recharge Element that was contained in the former plan.
On the other hand, the evidence, including reasonable inferences, establishes that Plummer was unaware of the plan-adoption process that was underway while he was trying to preserve the Mott Willis Building from demolition. Otherwise, Plummer would likely have updated his reference in his petition, although, to some extent, he appears to have long labored under the misimpression that this forum presents him an opportunity for redress of the County's failure, as
Plummer perceives it, to comply with the provisions of its own comprehensive plan. Also, Plummer proved diligent in the defense of the Mott Willis Building, and he likely would have been an active proponent of stronger historical provisions in the present plan, had he known that the planning process was underway.
On these facts, including inferences, it is impossible to find by a preponderance of the evidence that Plummer or The Historical Knights Bldg., Inc., ever submitted directly to the County Commissioners any recommendations, objections, or comments to the plan during the period between transmittal and adoption.
However, two factual questions remain concerning the standing of Plummer or The Historical Knights Bldg., Inc. The first factual question is whether the objections, recommendations, or comments that Plummer submitted to the Code Enforcement Board were effectively submitted to the local government. If so, a second factual question is whether the contents of these objections, recommendations, and comments sufficiently pertained to the pending plan as to confer standing on Plummer or The Historical Knights Bldg., Inc.
First, regardless of the awareness among members of the Code Enforcement Board of the comprehensive plan, the Board is part of the local government of Charlotte County and
is an important resource available to the County Commission in the preparation of the plan, as the Board's business routinely involves matters pertinent to comprehensive planning. Thus, for the purpose of determining standing in a plan-challenge case, the objections, recommendations, and comments that Plummer submitted to the Code Enforcement Board were submitted to the Board as an agent or subdivision of the County and, thus, to the County itself.
The more difficult factual question is whether Plummer's objections, recommendations, and comments sufficiently pertained to the plan as to confer standing to challenge the plan. Unaware of the plan-adoption process then underway, Plummer clearly did not offer any comments directly on the proposed plan. However, his objections, recommendations, and comments in defense of the Mott Willis Building were clearly germane to the comprehensive planning process, especially as it applied to the County's treatment of its historic resources. Plummer's objections, recommendations, and comments focused narrowly on the single issue of one important historic resource, at least one pertinent provision of the former plan protecting historic resources, and the adequacy of the County's commitment to the preservation of one of its most distinctive historic resources. The ensuing destruction of this historic resource,
although possibly justified under the facts (which were not litigated at the final hearing in these cases), nonetheless reinforces the urgency of Plummer's repeated requests that the County address squarely the issue of the preservation of its historic resources and the adequacy of its present policies and its implementation of those policies.
Based on these facts, Plummer and The Historical Knights Bldg., Inc., are affected persons with standing in DOAH Case No. 98-1634GM.
Data and Analysis
Historic Resources
The Historic Preservation Element notes that the Florida Master Site File contains 462 historic and archaeological sites in the County. Of the 340 of these sites that are historic structures, only 81 are in the unincorporated County. Of the five of these 340 historic structures that are also listed on the National Register of Historic Places, only two of them are in the unincorporated County. Historic Preservation Element, p. 9-5.
The Historic Preservation Element traces the history of Charlotte County from 12,000 B.C. when it marked the northern end of the territory occupied by the Calusa Indians. Many of the archaeological sites pertain to the Calusa period, which ended when these native people disappeared early in the
18th century--victims of European-borne disease, slave raids, and warfare.
The Spanish arrived in Charlotte County in 1513.
Spanish Cubans established fish "ranches" in Charlotte Harbor for the purpose of supplying fish to Cuba. In 1763, the English assumed control of Florida, which was acquired by the United States in 1821 and became a State in 1845.
During the War Between the States, Union forces encamped on an island to enforce a blockade of Charlotte Harbor, from which Confederate troops shipped cattle, timber, and salt. By 1863, more than 2000 head of cattle were shipped each week to the Confederacy. During the last week of 1863, two union ships made their way up the Myakka River and engaged in a skirmish with Confederate troops.
By the end of the war, cattle ranching had established itself in the area, although fishing remained an important commercial activity. Among the cattle docks occupying the shores of Charlotte Harbor was Knight's Pier, around which Charlotte Harbor grew. In the late 1880s, Punta Gorda was founded, and phosphate was discovered in the upper Peace River. The railroad reached Punta Gorda in 1886 and, with it, the area's first tourists. Historic Preservation Element, pp. 9-12.
The plan notes that the County established an Historic District by ordinance. Among the "major historical and archaeological sites" identified by the Charlotte County Historic Preservation Board are the Knight Dock (modern replacement); Willis Store, "a two-story frame house that was constructed circa 1923 to replace the original Knight general store which was built a year after the dock in 1863"; and the Willis home, "a two-story frame house that was constructed between 1910 and 1920 on property west of Bayshore Drive and south of Edgewater Drive." Historic Preservation Element, p. 9-17.
The Historic Preservation Element contains Maps 9.1 and 9.2, which depict the general location of historic structures and archaeological sites, using seven-unit alphanumeric codes for each structure or site. Historic Preservation Element Table 9.1 supplies the "primary name" and "category of property": i.e., "structure" or "building." However, the "primary name" is, in nearly every case, merely the address of each property. Absent knowledge of the street address of a property or, even less likely, its Florida Master Site File code number, it is impossible to determine if the table, and thus the maps, include a specific property, such as the Mott Willis Building, or the Site. FLUE Table 1.12 lists "historical structures," but omits the Mott Willis Building.
Sanitary Sewer
The relevant history of wastewater management is that outhouses and cesspools yielded to septic tank systems, and, largely in the 1970s and 1980s, septic tank systems in some areas yielded to large centralized wastewater treatment systems, whose construction was often aided by federal funding under the Clean Water Act, as it is now known. However, septic tanks and even cesspools remained the means of wastewater management for 25 million U.S. households in 1990. Columbia Exhibit 10, p. 3.
Residents of Charlotte County remain largely dependent on septic tank systems. County-owned Charlotte County Utilities, which is the largest sewer provider, serves 11,278 central sewer customers, as compared to 40,000 septic tank systems in operation in the County. In fact, the number of County septic tank systems exceeded by 3000 persons the number of customers served by all central sewer providers, including the 10,956 customers served by the City of Punta Gorda. Infrastructure Element, Table 4.23. Although typically associated with single family residential use, about
20 percent of the septic tank systems in Charlotte County serve commercial and institutional uses, such as strip malls, schools, and churches.
A conventional septic tank and drainfield, such as the typical system in use in Charlotte County, represent an anaerobic, onsite wastewater disposal system. A conventional septic tank system uses a tank to separate settleable and floatable solids from wastewater. The wastewater then passes into the drainfield through an outlet, which is placed above the settled solids and below the floating grease and other scum. The remaining solids and semi-solids, collectively known as septage, must be periodically pumped out of the tank, treated with disinfectant (normally lime), and landspread at approved sites.
In March 1993, the Department of Health and Rehabilitative Services published a consultant's evaluation of onsite wastewater disposal systems in Florida (HRS Report). County Exhibit 64. The HRS Report evaluates septic tank systems, as they operate in a variety of installations illustrative of the design, installation, and operation of such systems in Florida. One of the major purposes of the HRS Report is to examine the impacts of septic tanks systems on groundwater, which provides 87 percent of Florida's public potable water and 94 percent of its private supplies. County Exhibit 64, p. 1-1.
As already noted, some treatment of wastewater occurs in the septic tank, but most of the treatment takes
place after the wastewater enters the drainfield's unsaturated zone. Here, various biological, chemical, and physical processes effect the primary treatment prior to the entry of the leachate into the groundwater. As the report notes, "the 'soil is the system.'" County Exhibit 64, pp. 4-1 and 4-5.
The composition of residential, as opposed to commercial, wastewater entering the septic tank varies, but within typical ranges. Wastewater contains nitrogen and phosphorous, including nitrate nitrogen, which may reduce the oxygen-carrying capacity of the blood of infants; toxic organics in the form of household cleaners, many of which persist in the aqueous environment and are known carcinogens; heavy metals, such as lead, copper, cadmium, and arsenic, which are toxic to humans; and pathogenic bacteria and viruses, which can cause illness in humans.
The infiltration process that takes place between the release of the wastewater from the septic tank and its entry into the groundwater transforms organic and ammonium nitrogen to nitrate by microorganisms operating in aerobic conditions. The typical septic tank system removes about 20 percent of the nitrogen from the effluent. However, nitrate moves freely through the groundwater, and the reduction of nitrates in groundwater occurs primarily through dilation. County Exhibit 64, p. 4-34.
The septic tank system removes only 4-8 percent of the phosphorus from raw wastewater. Moreover, soil has a finite ability to retain phosphorus, which, with continued loading, will move deeper into the soil. County Exhibit 64, p. 4-34.
Septic tank systems more effectively eliminate bacteria that enter the soil. The elimination of bacteria is accomplished partially by low temperatures and low levels of nutrients and energy sources. Although survival rates for pathogenic bacteria are extremely variable--sometimes in excess of six months in unsaturated, unnutrified soil--"most, if not all," pathogenic bacterial indicators die within three feet of the infiltrative surface. However, improper siting of the drainfield can result in the introduction of pathogenic bacteria into the groundwater, in which pathogenic bacteria may survive sufficient periods of time--from seven hours to 63 days--to travel as much as 100 feet. County Exhibit 64, pp.
4-36 through 4-37.
Viruses occur in less than two percent of human stool excreted in the United States, but, when they occur, they occur in large numbers. If retained in the soil, viruses typically become inactivated at a daily rate of 30 to 40 percent. However, viruses can penetrate more than three meters of unsaturated soil. County Exhibit 64, pp. 4-37
through 4-40. Human viruses associated with the leachate from septic tanks live for 30-60 days in Charlotte soils.
Toxic organic compounds found in septic tank leachate include toluene, acetone, and xylenes, which may be found in solvents, cleaners, and perfumes. No study has examined the efficiency of septic tank system treatment of toxic organics. A model drainfield removed less than 10 percent of the toluene. County Exhibit 64, pp. 4-40 through 4-42.
Little information exists concerning the efficacy of septic tank system treatment of surfactants and heavy metals. County Exhibit 64, pp. 4-43 and 4-44.
For all contaminants, though, the efficacy of the septic tank system treatment is "dependent on the properties of the soil underlying the infiltrative surface." County Exhibit 64, p. 4-46. Soil characteristics that interfere with the treatment process include moisture content, organic content, pH, structure, particle size, and pore size distribution and continuity. Satisfactory performance occurs "where an aerobic, unsaturated zone of medium to fine texture soils, 2 to 5 ft. in thickness, is maintained below the infiltrative surface during operation." County Exhibit 64, p. 4-47. However, even under these optimal conditions,
phosphorus and metal retention are finite processes, and the transport of pathogenic viruses is largely unknown.
On balance, the HRS Report finds that "[p]ublic health and environmental risks from properly sited, designed, constructed, and operated septic tank systems appear to be low. However, use of conventional septic tank system technology in high density developments or environmentally sensitive areas could increase these risks to unacceptable levels." County Exhibit 64, p. 4-47. Surveying Florida soils, the HRS Report notes that about three-quarters of state soils have "severe or very severe limitations" for conventional septic tank system design--the most common limitation being seasonal wetness or shallow groundwater. County Exhibit 64, p. 4-51.
The consultants and the Department of Health and Rehabilitative Services conducted several field studies of the effects of septic tank systems upon groundwater. Among the conclusions of this research are that conventional septic tank systems "will be prohibited" in areas with sandy soils and relatively high water tables; high density installations of septic tank systems present the "potential for nitrate contamination" of the groundwater after 20-30 years of continued use of the system (the lengthy period of time due to the slow groundwater velocities); nitrogen is particularly
difficult to retain, even in 2-4 feet of unsaturated, suitable soil and after careful distribution of the effluent to the drainfield; removal of fecal coliform bacteria is "nearly complete" in two feet of unsaturated, suitable soil; and viruses are likely to pass through the sandy soils and enter the groundwater, although their rate of transport may be relatively slow, as compared to the rate of transport of other contaminants. County Exhibit 64, pp. 4-91 through 4-92 and 9-
3 through 9-4.
As already noted, Charlotte County has only one soil that is not "severely limited" for septic tank use, and this sand is found in only 0.8 percent of the County. Reflective of the unsuitability of Charlotte County for septic tank use, the water table in the County is close to the surface and "highly susceptible to groundwater contamination." Infrastructure Element, p. 4-93. Containing the "highest quality groundwater in the county," as compared to deeper aquifers, the water table, or surficial, aquifer contains over
1 billion gallons of good quality potable water. However, the water table aquifer is the most susceptible to contamination from such point sources as landfills, percolation ponds for sewage effluent disposal, land application of sewage effluent and sludge, industrial sites, and underground storage sites, and from such nonpoint sources as septic tank systems,
agricultural and residential use of fertilizers and pesticides, and saltwater intrusion. Infrastructure Element, pp. 4-83 and 4-93.
Older septic tank systems present even greater risks to human health and the environment for two reasons.
First, the useful life of conventional septic tank systems, such as those installed in Charlotte County, is no more than 20 years, assuming regular maintenance. Septic tanks should be pumped out no less frequently than every five to eight years. Infrastructure Element, p. 4-158. However, septic tank owners typically forego regular maintenance or periodic inspections until catastrophic failure, so inefficient filtration may begin much sooner than 20 years and continue unnoticed for some time. Also, as noted in the HRS Report, the capacity of the soil to retain phosphorus is finite, and the potential for nitrate contamination becomes much greater after 20 years.
Second, older septic tank systems were installed under a much more lax regulatory scheme that fails to assure reasonably proper functioning of the drainfield. Of the 24,000 septic tank systems installed prior to 1983, County employees have estimated, based on periodic inspections, that
70 percent (16,800) of septic tank systems have insufficient separation between the water table and drainfield.
Up to 1983, regulations required only six inches separation between the bottom of the drainfield and the top of the wet season water table. In 1983, regulations increased this separation to 24 inches. The 16,800 septic tank systems with insufficient separation routinely supply the water table with a variety of contaminants harmful to the health of County residents and visitors and the water resources of the County.
Regulations also now require greater separation between the drainfield and surface waters, including canals and swales that hold water for more than 72 hours after a storm event ends. Regulations required a 25-foot setback in 1965, a 50-foot setback in 1972, and a 75-foot setback in 1983 (although 50 feet remained acceptable for lots platted in 1972 or before). Presently, 10,000 septic tank systems are within
150 feet of surface waters. Inadequate setbacks, especially when coupled with six-inch separations between the drainfield and the water table, do not adequately protect the County's surface waters from contamination from septic tanks.
The age of the septic tanks in Charlotte County, coupled with the age of the plats, also impacts the permitted density of septic tanks. Prior to 1975, state law imposed no requirements for minimum lot size for septic tank systems. In 1983, when the separation between the drainfield and water table was increased to 24 inches, state law mandated that the
minimum lot size for septic tank systems was 1/4 acre or about 10,000 square feet. However, most studies conclude that the minimum lot size, to prevent the pollution of groundwater and surface waters, is 1/2 to 1 acre. Despite this fact, Charlotte County continues to allow owners of 10,000 square- foot lots to use conventional septic tank systems, if they also have central potable water. Infrastructure Element, p.
4-141. These densities, together with the inadequate separation of drainfields and water tables and inadequate setbacks of drainfields from surface waters, multiply the risk presented by septic tank systems to human health and environmental resources.
Based on this data and analysis, Charlotte County divided septic tank systems into two groups: those installed prior to 1983 and those installed in 1983 and later. This distinction is amply supported by the data and analysis.
However, the data and analysis do not justify unconditional reliance upon conventional septic tank systems installed in 1983 and later. Even when properly sited in a two-foot layer of suitable, unsaturated soils, conventional septic tank systems are not as effective as central wastewater systems in treating wastewater. This differential is heightened given the factors surrounding septic tank systems in Charlotte County: high density, unsuitable soils, low-
lying land, a high water table, and the proximity of surface waters.
Centralized wastewater treatment plants remove over
90 percent of the contaminants, killing most bacteria and viruses, and oxidize the effluent. Centralized systems facilitate careful monitoring and ongoing maintenance to ensure the attainment of prescribed water quality levels. By contrast, onsite systems present difficult monitoring and maintenance issues and typically lack advanced devices, common in centralized systems, such as flow-equalization systems-- leaving even a well-designed onsite system overloaded by two wash loads in rapid succession, so that its tank contents flush out into the drainfield.
Newer onsite wastewater systems have begun to offer an alternative to the conventional septic tank system. Innovative alternative systems may include anaerobic filters to minimize the release of nitrates into groundwater or surface water, ultraviolet disinfection to damage the genetic material of the cell walls of the viruses and bacteria present in the leachate so as to prevent their replication, fixed growth systems to allow aerobic microorganisms in a slime layer to attach and grow on the wastewater so as to extract a soluble organic matter that is a source of carbon and energy, intermittent sand filters to receive numerous doses of small
amounts of leachate and reduce biochemical oxygen demand (BOD) and total suspended solids to 10 mg/L or less, and recirculating sand filters to reduce levels of BOD, total suspended solids, fecal coliform bacteria, and nitrogen.
Columbia Exhibit 10, Appendix A. However, even these alternative systems provide less treatment than centralized wastewater plants, such as the County's largest plant, East Port, which treats 5 million gallons per day.
Moreover, the feasibility of alternative onsite wastewater systems depends on a number of factors including the density and intensity of development, availability of inspection and maintenance programs, and the physiographic characteristics of the installation site, including its size, soils (especially where one of the alternative systems would be used in conjunction with a conventional drainfield), and proximity to groundwater and surface water.
Alternative onsite wastewater systems are not in wide use in Charlotte County. At present, only four aerobic treatment units exist in the County. The County also is participating in a pilot project involving 200 homes whose tanks have monitoring ports to facilitate inspections of water quality.
Nothing in the record establishes that the U.S. Environmental Protection Agency (EPA) prefers alternative
onsite wastewater systems to centralized wastewater systems. The premise of the EPA Report to Congress on the use of decentralized wastewater treatment systems, which is Columbia Exhibit 10 (EPA Report), is that the newer alternative onsite systems are suitable for use in less densely populated areas. The EPA Report does not offer a detailed comparison of the efficiency of onsite wastewater systems with centralized wastewater systems, as operating in the conditions prevalent in Charlotte County--e.g., a high water table, unsuitable soils, low-lying land, nearby surface waters, and high densities.
Nor does the EPA Report offer a detailed analysis of the relative costs of the two methods of wastewater treatment, as they might be implemented in Charlotte County. Even if there were evidence that some combination of alternative components could achieve treatment levels comparable to centralized wastewater treatment under the conditions in existence in Charlotte County (and there is not), the EPA Report does not identify the components necessary to achieve such comparable treatment. Thus, the EPA Report does not compare the costs of a decentralized system, including maintenance and monitoring, to the costs of the centralized system.
Petitioners Columbia assert that septic tanks have not contributed significantly to water quality degradation in Charlotte County. To the contrary, the opposite of this contention is true.
As the County notes:
Septic systems are recognized as both polluters of groundwater and the major alternative to centralized sewage treatment plants. Under non-ideal conditions, septic systems can contaminate the surficial aquifer with nitrate, total dissolved solids, bacteria, and viruses. Since most of the naturally occurring soils occurring in Charlotte County are classified by the
U.S. Soils Conservation Service as severe for septic tank use [citation omitted], the use of septic tanks to treat domestic sewage in some of the more densely populated areas of Charlotte County must be questioned.
Natural Resources Element, p. 3-65.
As reflected in Infrastructure Element Charts 4.2 and 4.3, onsite wastewater systems account for only 2.9 and
0.5 percent of the total nitrogen and total phosphorus loadings in Charlotte Harbor. Given the prevalence, as noted above, of phosphorus in the water, the nitrogen loading is of greater significance to the features of water quality adversely affected by overnutrification. The three percent of nitrogen loading attributable to septic tank systems is meaningful in light of the fact that the two largest sources of nitrogen--nonpoint source (67.3 percent) and atmospheric
deposition (20.1 percent)--are relatively resistant to reduction by County action.
Also, as already noted, localized areas of Charlotte Harbor, such as at the mouths of tributaries, are more impacted by nutrients, and nutrients are only some of the contaminants derived from septic tank leachate. Fecal coliform bacteria, in part likely from septic tank leachate, have occasionally reached dangerously elevated levels numerous times since the County began monitoring for this bacteria in September 1994. Several times, County officials have had to close swimming beaches, such as at Port Charlotte Beach and Harbor Heights. Although fecal coliform bacteria is not specific to human wastes, County officials have conducted limited human virus testing to confirm the presence of human viruses at the points at which several canals enter Charlotte Harbor, so as to indicate the possibility that at least some of the fecal coliform bacteria is indicative of the presence of human intestinal wastes.
After weighing all of these factors, as well as the
requirements of the remedial agreement into which it had entered with DCA, Charlotte County decided to undertake a large-scale expansion of its central sewer system.
Shortly after acquiring General Development Utilities in 1991, Charlotte County adopted a 25-year central
water and sewer plan. However, estimated costs for this master plan are $678 million--$610 million for Charlotte County Utilities and $68 million for private utilities. Infrastructure Element, p. 4-168.
The County then adopted shorter-range plans for the expansion of central sewer into limited areas over periods of five and ten years. Twelve areas would receive central sewer by 2002 and additional areas would receive central sewer by 2010.
The five- and ten-year plans remain in place, but the sources of funding have changed. Initially, the County sought approximately $50 million in new funds through a referendum to extend the one cent local sales tax to pay for this two-stage expansion of central sewer collection and transmission lines and treatment capacity. However, in November 1996, the voters defeated the referendum by 400 votes, or less than .005 of the total votes.
After the rejection of the one cent sales tax, Charlotte County decided to fund the necessary expansion of central sewer collection and transmission lines and treatment capacity with connection fees, which would be due upon the availability of central service at built-out lots. The funding for the first phase of expansion is $2.82 million.
In identifying the areas first to receive centralized sewer service, the County considered several factors for each area: density, number of pre-1983 septic tank systems, proximity to surface waters, proximity to lift stations with unused capacity, proximity to existing transmission lines with unused capacity, and proximity to existing central wastewater treatment plants with unused capacity.
By considering the proximity of each area to components of the existing central sewer system with remaining capacity, the County lowered the cost of connections. Proximity to lift stations, for example, lowered the cost from
$8000 per connection to $4000 per connection and thereby reinforced the financial feasibility of the sewer expansion plan. By incorporating septic tanks, where possible, as holding tanks in low-pressure systems, the County further reduced the cost of connections without unreasonably jeopardizing the integrity of the system. In selecting the areas for service, the County even considered household incomes to ensure further that landowners would be able to pay the connection costs and the program would be financially feasible.
Charlotte County has borrowed money from the State Revolving Fund to pay for the central sewer expansion. The
County must repay this money in 18 years. The loan documents require that the County mandate connections to the expanded system as it becomes available. Additionally, the bonds issued by the County in the acquisition of the water and sewer system also require mandatory connections to County-owned central water and sewer service.
Charlotte County will collect the estimated connection fee of $3982 by allowing landowners to amortize the principal, together with eight percent annual interest, over seven years; the County estimates the monthly payment to be
$62-70. The County offers programs to assist persons who cannot afford to pay the connection fee. County sewer fees are already high due to the cost of servicing the acquisition debt resulting from the County's acquisition of these facilities, including a $92 million bond issued in connection with the purchase of General Development Utilities; acquisition debt service is the largest portion expense borne by Charlotte County Utilities. Infrastructure Element, p. 4- 168.
The analysis of the County's financial ability is
contained in the Capital Improvements Element and Infrastructure Element, pp. 8-35 et seq. The analysis demonstrates that all identified sources of revenue are
financially feasible and that the entire sewer expansion program is financially feasible.
Eventually, the County identified 12 areas to include in the first phase of the sewer expansion program, which is to be completed by 2002. The second phase is to be completed by 2010.
These 12 areas contain 3680 lots, of which 2275 are already developed. All of the areas are in the central portion of the County, mostly along U.S. Route 41 between the Peace River and State Route 776. Nearly all of the 12 areas are adjacent to, or in close proximity to, areas served by existing gravity sewers. The 12 areas are entirely within Infill Areas in the USA.
The two areas that have drawn the most attention in these cases are A1 and A2. A1 is a triangular parcel bounded on the northeast by U.S. Route 41 and the south by Charlotte Harbor. A2 is an extremely small area about four blocks northwest of A1 and just off of U.S. Route 41. Petitioner Jordan lives in A1. By the time of the hearing, the County had already completed the expansion program in these areas and had successfully used the existing lift station.
A1 is largely tourist commercial with a density of about 3.5 units per acre. A2 is mixed use with a density of about 15 units per acre. Eighty to ninety percent of the
septic tank systems in A1 and A2 are pre-1983 systems. A1 abuts Charlotte Harbor, and A2 is only about three blocks from the harbor.
Petitioner Jordan challenged the County's reasoning for the exclusion of the area between A1 and A2. This area is in the second phase of the expansion project. There is no evidence whatsoever that the County omitted this area, even if economically depressed relative to A1 and A2, in a manner that is arbitrary or intended to discriminate against lower-income residents.
Moreover, this entire area, which is known as Charlotte Harbor, appears to be in the middle, among other locations in the County, in terms of median household income. In no way has the County's identification of the first- or second-phase areas to receive central sewer had an impact on affordable housing.
Charlotte Harbor contains the County's only Community Redevelopment Agency area. Although this area is largely built-out, the County has reduced densities from 15 and 30 units per acre to 3.5 units per acre, so as to direct population away from this the Charlotte Harbor Community Redevelopment Agency Area, which is almost entirely within the CHHA and is 90-95 percent built-out.
Potable Water
Bocilla Utilities was incorporated by the developers of Colony Don Pedro, or their affiliates, in the early 1980s during the development of Colony Don Pedro, which is a resort development on Don Pedro Island. Bocilla Utilities has a proven record of technical competence and professional integrity in producing and supplying potable water to those island residents who are its customers.
A no-name storm destroyed the wells of Bocilla Utilities in June 1982. In 1984, Bocilla Utilities received a permit to operate a reverse osmosis plant. Built in 1985, the plant was designed to produce 30,000 gallons of potable water daily. The plant has not been extensively damaged since its construction.
Bocilla Utilities operates two wells to remove brackish water from about 165 feet deep and is in the process of adding an already-permitted third well at the site. Just seaward of the plant are two 50,000 gallon underground storage tanks for holding finished water prior to its distribution to customers. Bocilla Utilities deep-well injects the waste byproduct of the production process.
The plant and wells of Bocilla Utilities are located on the part of the Don Pedro island chain that is divided into three narrow spits of land immediately south of where Bocilla Pass formerly divided the chain. The Gulffront
lots along a small road are platted to be 100 feet wide and
300 feet deep. On the other side of the road, the lots, which front Bocilla Lagoon, are platted to be 80 feet wide and about
150 feet deep. Bocilla Lagoon is about as wide as the spit of land on its Gulf side. Behind Bocilla Lagoon is another spit of land a little narrower than the first and with waterfront lots on either side of a narrow road. Kettle Harbor, which is a little wider than Bocilla Lagoon, is behind the second spit of land, and behind Kettle Harbor is a third spit of land, about the same width as the second, with waterfront houses on either side of a narrow road.
The plant and wells of Bocilla Utilities are about 2900 feet south of where the island closed over the portion of Bocilla Pass leading into the Gulf of Mexico. Most of the pass still remains; it is blocked from the Gulf by six 300- foot Gulffront lots that are platted to be about 300 feet deep and about 80 feet wide. The plant is located above 75 feet from Bocilla Lagoon, and the wells are within 50 feet of the lagoon. Water lines are covered by 2 1/2 to 3 feet of sand.
In general, "the shoreline is the most extensive of all high hazard areas." Natural Resources Element, p, 3-206. As disclosed by Natural Resources Element Map 3.13, which depicts topographical contours, the Don Pedro island chain is
low-lying, with its highest point not much more than five feet in elevation.
There is no central sewer on the Don Pedro island chain. Most of the septic tank systems are within 100 feet of surface waters. Because nearly all of the lots on the Don Pedro Island chain were platted prior to 1972, septic tanks may be installed within 50 feet of surface waters.
In 1991, Bocilla Utilities became a public utility regulated by the Florida Public Services Commission (PSC).
The PSC has granted Bocilla Utilities a certificated territory on the Don Pedro island chain that Bocilla Utilities must serve at a PSC-approved rate. The territory is bounded on the south by the Don Pedro Island State Park and the north by the Palm Island Resort. Within these limits, the territory runs from the Gulf of Mexico to the Intracoastal Waterway.
Bocilla is now permitted for 120,000 gallons per day and, at the time of the hearing, was completing the first phase of its expansion, to 60,000 gallons per day. Bocilla Utilities will construct the second phase of its expansion when customer demand dictates.
At the time of the hearing, Bocilla Utilities was serving 186 connections. Its service lines reached 58 homes whose owners chose not to connect to central water. Its service lines also reached 291 empty lots. Additionally,
Bocilla Utilities had not yet extended lines to 36 homes and
159 empty lots within its certificated territory. These 730 lots constitute Bocilla Utilities' entire certificated territory, except for one unplatted 12-acre parcel. Ignoring this unplatted parcel, approximately two-thirds of the portion of the Don Pedro island chain within the certificated territory of Bocilla Utilities is unbuilt.
Over 1800 of the 1842 platted lots on the Don Pedro island chain are available for residential development. Thus, the 730 lots within the certificated territory of Bocilla Utilities constitute almost 40 percent of the available platted lots on the entire Don Pedro island chain. About 80 homes on the Don Pedro island chain use wells and/or cisterns for potable water.
Although the record is not entirely clear, little of the Don Pedro island chain remains unplatted. This fact has an important bearing on the effect of the Bridgeless Barrier Island Overlay District, which, on its face, limits density to one unit per acre. This density is more theoretical than real. For already-platted land, which applies to nearly the entire island chain, the designated density under the overlay district is one unit per platted lot. Thus, as a practical matter, the Bridgeless Barrier Island Overlay District will do very little to limit
population growth on the Don Pedro island chain. As was the case prior to the adoption of the first plan, the permitted densities for the Don Pedro island chain remain governed by the more generous land development regulations in effect at the time of platting the island chain. For the same reasons, the policy requiring mandatory connections to central water, as applied to the Don Pedro island chain, will not have any impact on the designated density permitted on the island chain by the plan.
Given the practical ineffectiveness of the Bridgeless Barrier Island Overlay District in limiting population on the Don Pedro island chain, Petitioners Starr argue that the practical effect of the plan provisions requiring mandatory connection to central water, as applied to the island chain, will accelerate population growth.
Although, for the reasons just noted, this growth will not express itself in higher densities at build-out. Instead this growth will express itself in two ways: accelerated development of the undeveloped, though platted, land and intensification of the use of already-developed land.
Any analysis of the impact on island population growth of a policy of mandatory connections to central water must begin with the fact that population growth, at present, has not been remarkable fast on the island chain. In its
answers to interrogatories, Charlotte County argues that island growth is driven by two invariables (at least for the present): the lack of a bridge and the presence of vested platted lots. Undoubtedly, the lack of bridge access to the Don Pedro island chain discourages population growth. Starr Exhibit 9, pp. 1-3. Of course, the presence of vested platted lots favors population growth.
However, conventional density analysis, which addresses dwelling units per acre, inadequately describes the intensity of use of the Don Pedro island chain, which is a popular tourist destination for visitors and County residents. A better measure of residential intensity measures the intermittent residential use of the dwelling units present on the island chain. A fixed number of dwelling units, many of which are occupied intermittently by their owners or renters, generate residential intensity based on the periods of time that they are occupied. Thus, factors contributing to longer periods of occupancy of a fixed number of dwelling units drive any analysis of the anthropogenic impacts upon the highly sensitive natural resources of this barrier island system and its adjacent estuarine and open waters.
From the perspective of the intensity of residential uses, the policy of mandatory connections to central water, as applied to the island chain, intensifies
residential uses by increasing the periods of occupancy of the dwelling units present on the island chain. Absent evidence of the promotion of the Don Pedro island chain as a pristine adventure experience more typical of eco-tourism than conventional tourism, it is evident that tourist destinations with reliable sources of potable water enjoy greater appeal than tourist destinations lacking reliable sources of water.
As the principal of Bocilla Utilities testified, central potable water adds value to an island residence, and this value may express itself in fair market value or in rental value, both of which are indicators of more appealing tourist destinations and, thus, greater periods of occupancy of each residence.
The dry months in Southwest Florida are approximately coextensive with the winter, during which time a large number of visitors seek relief from unpleasant weather elsewhere. Thus, the availability of potable water is an important issue during a period of time associated with tourism.
The possibility of potable water shortages among persons occupying residences not connected to central water is more than theoretical. In the past, drought conditions have produced water shortages among island residents dependent on cisterns and wells for potable water. Some residents have
used garden hoses running from spigots in residences served by Bocilla Utilities to fill their cisterns during dry months, although the frequency of this occurrence, given the vigilance of Bocilla Utilities, is probably quite low.
Water shortages experienced by persons occupying residences not served by central water produce lower levels of consumption of potable water in three ways. Persons subject to such shortages will use water more prudently to avoid shortages and, of course, will use no water at all when the supply is exhausted. Also, the unreliability of potable water supplies at such residences will discourage their occupancy, so as to lower further levels of potable water consumption.
Reports of actual usage reflect the lower levels of potable water consumption at residences that rely exclusively on cisterns for potable water. The three members of Petitioners Starr average nearly 2300 gallons per month or about 76 gallons per day at their respective households, which are supplied by cisterns. Assuming only two persons per household, rather than the County average of 2.23 persons, this would represent 38 gallons of potable water per day per person. This consumption rate is less than half of the County's level of service standard for potable water, which is
85 gallons per day per person. Infrastructure Element, p. 4- 106.
Betty Brenneman, who is a member of Petitioners Starr, testified that, during her 12 years on the island, she has detailed knowledge of the island residences, largely due to her work as a real estate agent and manager for 24 rental properties. She noted that, prior to the availability of central water, there were only one or two single family pools on the island chain, but now there are at least 24 pools.
From the perspective of conventional density analysis, the presumed inevitability of the development of the platted lots does not justify the acceleration of this process through the adoption of a mandatory water connection policy on the island chain. But, even if the island chain were built- out, the intensification of residential uses resulting from a requirement of mandatory connections to central water, as applied to the Don Pedro island chain, raises serious planning issues in the context of the unique resources of the Don Pedro island chain, the risks posed to residents of this island chain that is highly vulnerable to catastrophic storm surge and winds, the planning challenges generally confronting the County in addressing the urban sprawl resulting from a large number of platted lots, and the strategies adopted by the County to address these challenges.
The Don Pedro island chain is the sole location
outside of the USA for which the County requires mandatory
connections to water or sewer. Except for the environmental issues unique to a barrier island and its adjacent estuarine waters and the unique natural hazards posed to residents of this barrier island, the situation on the Don Pedro island chain is a microcosm of the formidable planning challenges facing Charlotte County due to the vast numbers of prematurely, and poorly, platted lots and the importance of the County taking advantage of the few strategies that it has been able to adopt to address these challenges.
If every one of the 226,000 buildable lots within the County's three urbanized areas were developed, the County would realize a density in these urbanized areas, which consist of 215 square miles (or 137,600 acres), of 1.64 units per acre. FLUE, p. 1-99. The development of such vast amounts of land at such low densities underscores the costly impacts of urban sprawl and inefficient land-development practices, as the County will attempt to find ways to provide extensive public facilities and services, such as extra roads, longer water and sewer lines, more drainage systems, and more public safety substations, that are necessary to serve such far-flung development. As the County admits, "[u]rban sprawl, which is the opposite of concentrated growth, is a far more expensive and inefficient way for land to be developed."
FLUE, p. 1-131.
In responding to utilities' claims that they must serve their certificated territories economically by adopting a policy of mandatory connections (anywhere outside of the USA, but especially on a bridgeless barrier island chain), the County ignores its analysis of the relationship of platted lands and central utility service and, for the reasons already discussed, the unusual limitations already imposed upon the County in discouraging urban sprawl through County control of the timing and location of the provision of infrastructure:
As with the overplatting of the county, the granting of vast certificated areas has made the task of managing growth extremely difficult; when dealing with numerous private utility providers, the issuance of certificated areas is a primary growth management tool, and one which is not altogether available in Charlotte County.
FLUE, p, 1-147.
Repeatedly, the County recognizes in the plan that the availability of central water facilitates growth within the served area. At one point, the County's analysis points out: "Besides roads, central potable water lines have had the greatest infrastructure influence on the development pattern of Charlotte County." Infrastructure Element, p. 4-153. Reflecting the insights borne of many years of dealing with the logistical and fiscal challenges of finding ways to extend vital public facilities to vast areas of prematurely platted land, the County's analysis adds: "Growth and development can
be channeled toward certain locations in Charlotte County through the provision of potable water service; the intensity of use can be determined through the provision of central sanitary sewer service." Infrastructure Element, p. 4-143.
It thus follows that: "Rural Service Areas are those locations in which central potable water and sanitary sewer should not be extended during the planning time period. This action, along with very low residential densities, reduces the likelihood of major population growth occurring in rural areas of Charlotte County. The Rural Service Area includes the bridgeless barrier islands . . .." Infrastructure Element, p. 4-149.
In general, the County has attempted to adopt growth management strategies that "govern development without sacrificing the positive aspects of urban sprawl." FLUE, p. 1-132. The County's ambivalence toward sprawl, which may
partly explain its extension of the mandatory water connection policy to the Don Pedro island chain, is disclosed in the following analysis:
Urban sprawl, which is the opposite of concentrate growth, is a far more expensive and inefficient way for land to be developed. . . . The growth management strategy incorporated within this comprehensive plan is developed and implemented with the urban sprawl rule in mind. Characteristics of urban sprawl identified by this rule include: lands which have been prematurely converted from
rural lands; lands in which development is not functionally related to adjacent areas; and lands which fail to maximize the use of existing public facilities. Patterns of urban sprawl include leapfrog or scattered development, strip commercial development, and large expanses of single-use development.
Due to past practices, Charlotte County can be considered an urban sprawl community.
The County is characterized by strip commercial development lining the major urban corridors, large expanses of single- family homesites which have been platted and deemed vested for development, and scattered development which has resulted from various development pressures. Most academic sources, however, point only to the downside of urban sprawl without identifying its positive aspects. In Charlotte County, these past practices have at least kept the cost of home and business ownership low.
FLUE, p. 1-131.
It remains open to question whether urban sprawl in Charlotte County has actually kept the cost of home ownership low or, stated in the alternative, depressed residential real estate values. Limiting home ownership costs to mortgage principal, mortgage interest, ad valorem taxes, and homeowner's insurance, Housing Element Table 6.17 shows that, among the six counties of Southwest Florida, Charlotte County is fourth in the percentage of its households spending at least 30 percent of their income on housing. Twenty percent of Charlotte County households spend at least 30 percent of their income on housing, which is slightly less than the 21.8
percent of Collier County households spending at least 30 percent of their income on housing. Of course, these figures ignore differences in income and housing values, but the mean cost of a new house in Charlotte County in 1990 was $77,200, which is $5100 over the state mean, 16th among Florida's 67 counties, and 13th among Florida's 33 coastal counties.
Housing Element, p. 6-viii.
In any event, the extension of central water through the Don Pedro island chain, together with mandatory connections, will raise real estate costs, as already noted. Notwithstanding any ambivalence toward sprawl, the County's extension of the mandatory water connection policy to the Don Pedro island chain ignores the many limitations already imposed upon the County in trying to control the admittedly adverse effects of urban sprawl through land use restrictions.
The demographic factors present in the County coupled with the large extent to which important infrastructure is not provided by the County are accentuated by the more typical concerns of local governments in Florida arising out of the 1995 Bert J. Harris, Jr., Property Rights Protection Act (Harris Act). In addition to the Fifth Amendment constitutional prohibition against uncompensated takings, the Harris Act arguably imposes additional statutory restrictions upon the County and State in regulating land uses
without compensating landowners. The County notes that the Harris Act "may severely limit local, regional, and state government actions regarding land uses of private property owners or may require compensation for such actions," FLUE,
p. 1-3, and "seriously hampers . . . the County's ability to reduce the density of . . . existing plats." Natural Resources Element, p. 3-202.
In the face of all of these limitations upon the County's ability to limit urban sprawl on the sensitive Don Pedro island chain, the County's extension of the mandatory water connection requirement to the island chain is counterproductive. in the extreme. Nothing in the Harris Act compels the County to require island landowners to connect to central water, or else owe damages to these landowners. To the contrary, allowing island landowners not to connect to central water is one of the few cost- and risk-free strategies left to the County for discouraging sprawl on the island chain. Although the benefits of not requiring mandatory water connections may not completely offset the disadvantages of the platted density, the importance of not requiring mandatory water connections on the island chain assumes greater importance because it is one of the few available options left to the County to deal with the planning challenges presented by the densely platted island chain. Under the circumstances,
the County's decision not to exercise this option but, instead, to require mandatory water connections on the island chain, is inexplicable and repugnant to the data and analysis, which militate in favor of reduced densities and residential intensities on the island chain.
In addition to yielding benefits to the natural resources of and surrounding the island chain, a policy contributing to reduced densities and residential intensities also addresses the unique natural perils confronting the island's residents or visitors and their property. In the past 110 years, Charlotte Harbor has absorbed the energy of at least seven named tropical storms or hurricanes, as well as many no-name storms such as the thunderstorm cluster of June 1995. The area between Charlotte Harbor and Hillsborough Bay is at the intersection of numerous hurricanes forming in the Gulf of Mexico and the Atlantic Ocean and has experienced a very high number of tropical storms and hurricanes. Even ignoring the no-name storms, tropical storms or hurricanes have hit the Don Pedro island chain an average of once every
16 years.
The Don Pedro island chain is generally low. As already noted, nearly all of the island chain will be inundated by the storm surge associated with the landfall of merely a tropical storm; the small remaining portion of the
island chain is inundated by a Category 1 storm. FLUE, Map 1.17.
The Storm Tide Atlas for Charlotte County, which was prepared by the Southwest Florida Regional Planning Council, reveals that a tropical storm hitting land at a point about midway between the Bocilla Utilities water plant and wells and Bocilla Pass is about four feet above National Geodetic Vertical Datum; this location on the island chain will be under about one half foot of water. The same location is under about two feet of water in a Category 1 hurricane, five feet of water in a Category 2 hurricane, a little over eight feet of water in a Category 3 hurricane, and nearly 14 feet of water in a Category 4 or 5 hurricane. County Exhibit 53, Plate 2 and back page.
A Category 3 storm would cause significant damage to island properties, including the wells and transmission lines of Bocilla Utilities, that are located close to the water and within one-half mile of an historic pass. Although the plant itself is designed to resist the storm surge and winds associated with a storm producing winds of 140 miles per hour, a Category 5 storm would, in the words of the director of the County Emergency Management Department, "wipe the island clean" of everything, including the plant, the wells,
the transmission lines, and any residents or visitors failing or unable to heed orders to evacuate. (Transcript, p. 1908.)
The parties raise several other issues concerning the requirement of mandatory connections to central water, as applied to the Don Pedro island chain.
The County justifiably contends that the quality of Bocilla Utility water is more reliable than the quality of the water from cisterns or wells. The Bocilla Utilities water will be more reliable due to the ongoing monitoring and treatment performed by Bocilla Utilities and the infrequent monitoring and less-extensive to nonexistent treatment performed by owners of wells and cisterns.
In 1996, the director of the County Health Department tested four bad samples from the Don Pedro island chain: three from wells and one from a cistern. E. coli bacteria contaminated one well sample, and coliform bacteria contaminated one well sample and two cistern samples, one of which came from a kitchen faucet. In all, there was one incident of reported diarrhea and vomiting likely associated with bad water.
However, these four bad samples came from Little Gasparilla Island, which is not in the certificated territory of Bocilla Utilities and which is characterized by older, more dense residential development than that within the
certificated territory of Bocilla Utilities. And, prior to 1996, the director could not recall a single problem with potable water quality on the island chain.
Although the cisterns collect rainwater, which is relatively pure, the conditions in the cistern and onsite delivery line may be less than ideal. Also, the wells and many of the cisterns are installed in the ground, where they are vulnerable to contamination from stormwater runoff.
Most wells are only 8-10 feet deep so as to tap a shallow freshwater lens under the island chain. Typically, the wells are jetted in with a hose, rather than bored, and lack a concrete apron, so they too are vulnerable to contamination from stormwater runoff.
However, the record establishes that the wells and cisterns in use on the Don Pedro island chain do not represent a measurable threat to human health. For instance, Robert Starr (Starr), who has lived on the island for 11 years, uses a cistern, which, like many on the island chain, was installed by Bocilla Utilities, and reports no problems. Starr changes filters once a month. The same is true with the two other members of Petitioners Starr, who have lived on the island for six and 12 years, respectively.
Greater consumption of potable water means greater production of septic tank leachate and irrigation runoff.
About 75 percent of the amount of potable water consumed will become wastewater. These inputs will have a deleterious effect on Lemon Bay.
Each side mounts fire-safety arguments that largely cancel each other out. The County asserts that the lack of hydrants allowed a home to burn to the ground "several years ago." Petitioners Starr assert that Bocilla Utilities lacks the commitment to providing serviceable hydrants in their certificated territory with sufficient water pressure to extinguish a house fire.
Whatever the truth of these assertions, firefighters have four floating pumps to draw saltwater from nearby surface waters to fight house fires in the certificated territory of Bocilla Utilities, as well as in the much larger area of the Don Pedro island chain that is not within the certificated territory of Bocilla Utilities or otherwise served by central water. Additionally, unless island residents have a particular aversion to death by fire and asphyxiation, as opposed to death by water and drowning, they would more likely, when addressing perils to their lives and property, focus upon the greater risk posed to them by storm surge and wind, as presented by a storm, or even by the more persistent wind and tidal action.
Plan
Provisions Governing Historic Resources
Historic Preservation Element Objective 1.1 is that the County, "[b]y June 1, 1999, will develop a program which will protect the County's historical and archaeological resources."
The policies under Historic Preservation Element Objective 1.1 provide an array of programs and mechanisms by which to achieve this objective. These programs and mechanisms include providing matching funds (if financially feasible) for federal and state programs to obtain grants to contribute to the knowledge of the County's historic and archaeological heritage, offering transferable development rights or other incentives for the preservation of historic and archaeological resources, and adopting an historic preservation ordinance to provide specific criteria to protect historic and archaeological resources.
Historic Preservation Element Objective 1.2 is for the County, by June 1, 1999, to develop and maintain a site inventory on the County geographical information system of all significant historic buildings, historic architecture, historic districts, and archaeological objects and places. Historic Preservation Element Policy 1.2.4 is to "strive" to "locate, identify, preserve, protect, and recognize its archaeological sites and historic structures "
Historic Preservation Element Objective 1.3 is for the County to encourage the nomination of historic buildings, sites, districts, or objects to the National Register of Historic Places or the Local Register of Historic, Archaeological, or Scenic Places. Historic Preservation Element Objective 1.4 is for the County to "participate" in public education campaigns to promote public awareness of the importance of preserving its historic, archaeological, architectural, and scenic resources.
Although Housing Preservation Element Goal 2 is, among other things, to identify "historically significant housing," none of the objectives or policies under that goal mentions such housing by name, although Housing Element Policy
2.1.1 is to assist public and private housing providers by providing information and assisting in obtaining state and federal grants to increase the supply of, among other things, "special needs groups," which may incorporate those persons "needing" historically significant housing.
According to the FLUE Table of Contents, the "Free- standing Future Land Use Map series" includes a map entitled, "Historical Sites Overlay District, 1997-2010" (Historical FLUM). The Historical FLUM identifies itself as, "Future Land Use Map Series No. 6, Adopted October 7, 1997." Although FLUE Objective 2.1 does not identify the maps that are part of the
adopted Future Land Use Map (FLUM) series, it is evident which maps are part of the FLUM map series, and the Historic FLUM is clearly part of the FLUM that the County adopted as part of the plan.
The Historic FLUM is a map of the County measuring about 17 inches by 11 inches. Eight major roads are indicated on the map. Locations of interest on the map are depicted by a small pentagon on the map and a line leading from the pentagon to a code, such as "CH00445."
The Historical FLUM is the same map as Historical Element Maps 9.1 and 9.2. However, Historic Preservation Element Table 9.1, which is required to obtain the street addresses of the historical sites that are depicted on the Historical FLUM, does not accompany the Historical FLUM, nor does the Historical FLUM incorporate or even mention the table.
Provisions Governing Potable Water and Sanitary Sewer
Infrastructure Element Objective 1.7 is to "manage development within the . . . 100-year floodplain." Infrastructure Element Policy 1.7.1 provides that, for properties within the 100-year floodplain, the County shall grant transferable development rights to landowners electing, in perpetuity, not to disturb or alter their land within the 100-year floodplain.
Infrastructure Element Policy 8.1.5 protects areas of prime aquifer recharge by limiting densities to one unit per 10 acres. Infrastructure Element Objective 8.2 is to "maintain. . . or improve. . ." the County's groundwater resources, which "shall not be degraded, either directly or indirectly, by human influences, below Federal or State standards." Infrastructure Element Policy 8.2.5 is to "maintain . . . current policy requiring mandatory connection to sewer and water service when such service is provided, thus reducing the number of septic tanks and wells in use."
Infrastructure Element Goal 9 is for the County to encourage public and private utilities to provide economically efficient water and sewer systems that "maximize. . . the use of existing facilities to meet the needs of a growing population, while protecting the environment."
Infrastructure Element Objective 9.1 is for County and utilities to provide water and sewer services to new and existing development "in conjunction with" previously certificated territories and the USA strategy. Infrastructure Element Policy 9.1.1 encourages utilities to extend sewer and water services to Infill Areas in accordance with the USA strategy. Infrastructure Element Policy 9.1.4 states that certificated territories will be extended or expanded for
water or sewer outside of Infill Area boundaries, subject to certain exceptions.
Infrastructure Element Policy 9.1.7 provides that landowners of new development within the Infill Areas or previously certificated territory where central water or sewer is not available, shall connect to central water or sewer when it becomes available and within 365 days of written notice from the utility.
Infrastructure Element Policy 9.2.2 requires mandatory connection to central sewer for landowners whose property is served by a package plant, which is allowed in the USA as a "temporary measure."
Infrastructure Element Policy 9.2.3 provides that the availability of water and sewer will not necessarily justify development approval.
Infrastructure Element Objective 9.3 is for the County to "protect its existing and future potable water supplies, such as the Peace River, and wellhead locations."
Infrastructure Element Objective 9.4 is, in part, to identify and conserve water supplies. Infrastructure Element Policy 9.4.7 is for the County to encourage water utilities to adopt a conservation rate for users.
Infrastructure Element Goal 10 is for utilities to maintain adequate levels of service for water and sewer.
Infrastructure Element Objective 10.1 is for utilities to provide the capital improvements needed to maintain existing facilities, replace obsolete or worn facilities, and eliminate existing deficiencies.
Infrastructure Element Policy 10.1.1 adopts level of service standards of 190 gallons per day per dwelling unit for water and 161.5 gallons per day per dwelling unit for sewer. Per person rates are calculated by dividing these rates by 2.23. Infrastructure Element Policy 10.1.2 is for all facility improvements to meet the adopted levels of service standards. Infrastructure Element Policy 10.1.5 states that concurrency determinations are on the basis of the relevant facility, not on the basis of the entire County or system.
Infrastructure Element Goal 11 is for the County to "attempt to reduce negative impacts to the natural environment and the public health, safety, and welfare resulting from the use of sanitary wastewater treatment systems (septic systems, package treatment plants, and central sewer systems)."
Infrastructure Element Objective 11.1 is for the County to "develop and begin implementing a septic system management program" by October 1, 2000. Infrastructure Element Policy 11.1.2 is for the County to "develop and maintain a schedule of septic system maintenance" and to
"begin implementation" by October 1, 2000. Infrastructure Element Policy 11.1.3 bases the schedule on the geographic area, system size, drainfield and water table separation, system age, performance history, soil type, surface water setback, and other information. Infrastructure Element Policy
11.1.5 allows the continued use in the USA of "properly constructed and functioning septic systems which are maintained in accordance with the septic system management program," unless a utility requires connection to a central sewer system. Infrastructure Element Policy 11.1.6 imposes upon the owners the cost of the septic system management program. Infrastructure Element Policies 11.1.1 and 11.1.4 are for the County to complete a pilot septic tank system management program by October 1, 1999, and to use private companies to inspect and maintain septic tanks as part of the septic tank system management program.
Infrastructure Element Objective 11.2 is for the County to "develop and begin implementation" of an ambient water quality monitoring program, by December 31, 2000, "to determine the impacts of pollution resulting from the use of sanitary wastewater treatment systems (septic system, package treatment plants, and central sewer systems)." Infrastructure Element Policy 11.2.3 requires the repair or replacement of systems violating water quality standards and endangering the
public health. Infrastructure Element Policies 11.2.1 and
11.2.4 are for the County to collect and analyze soils samples for pollutant loadings by December 31, 2000, and to enforce the minimum requirements of Rule 10D-6 for new or replacement septic tank systems.
Infrastructure Element Objective 11.3 states: "Developed properties will be connected to central potable water or sewer service when it is available and within 365 days upon written notification by the utility provider."
Infrastructure Element Policy 11.3.1 defines availability as a utility line within a public easement or right-of-way abutting the property and within 200 feet of the property line of a developed establishment. Infrastructure Element Policy 11.3.2 requires connection to central water, and Infrastructure Element Policy 11.3.3 requires connection to central sewer. Infrastructure Element Policy 11.3.4 is for the County to "encourage" interconnection of package treatment plants and the replacement of such plants with larger, more economical treatment systems or alternative onsite treatment systems with advanced treatment standards.
Infrastructure Element Objective 11.5 is for the County to "attempt to reduce the percentage of septic systems serving new development."
Infrastructure Element Objective 11.6 is for the County to "require the installation of advanced onsite treatment and disposal systems based on lot size or proximity to surface water for new development by July 1, 1998 "
Infrastructure Element Policy 11.6.1 provides that proximity to surface water means 150 feet, and Infrastructure Element Policy 11.6.2 provides that lot size means up to and including 10,000 square feet-unless, in either case, the area is scheduled to receive central sewer, according to the five-year schedule of capital improvements. However, Infrastructure Element Policy 11.6.3 requires mandatory connection to central sewer, even if an alternative wastewater treatment system is installed.
Infrastructure Element Goal 12 is for the County to operate its water and sewer utilities efficiently and for the benefit of the public. Infrastructure Element Objective 12.1 is for the County to provide adequate capital improvements to attain the minimum level of service standards in the operation of its water and sewer systems. Infrastructure Element Policy
12.1.1 is to include major capital expenditures for water and sewer on the five-year schedule of capital improvements. Infrastructure Element Policy 12.1.6 is for the County to seek federal and state assistance to fund central water and sewer infrastructure for Charlotte County Utilities. Infrastructure
Element Policy 12.1.7 requires the County to implement a short-range central sewer installation program from 1997-2002 within the areas shown in Infrastructure Element Map 4.A. Infrastructure Element Policy 12.1.8 requires the County to implement a long-range central sewer installation program starting in 2002 within the areas shown in Infrastructure Element Map 4.B. Infrastructure Element Map 4.A contains the
12 areas previously described within the central portion of the County, mostly along U.S. Route 41 and State Route 776. Infrastructure Element Map 4.B contains primarily two massive areas: one encompassing A1 and A2 from Infrastructure Element Map 4.A together with a much larger area along U.S. Route 41 abutting the mouth of the Peace River and another even larger area along U.S. Route 41 about midway between State Route 776 and the Peace River.
Capital Improvements Element Policy 1.3.20 is for the County to apply numerous criteria in implementing capital improvements projects. These criteria include the elimination of public health or safety hazards, elimination of capacity deficiencies, ability to service future growth, financial feasibility, and consistency with the USA strategy.
FLUE Goal 1 is for the County to "manage growth and development in a manner which safeguards the public
investment, balances the benefits of economic growth with the need for environmental protection, and prevents urban sprawl."
FLUE Objective 1.1 is for the USA strategy to direct the "timing, location, density, and intensity of development and infrastructure . . . so that at least 90% of the urbanized development is located within the [USA's] Infill Areas." FLUE Policy 1.1.1 divides the USA into the Infill Areas and Suburban Areas and divides the County into the USA and Rural Service Area. FLUE Policy 1.1.2 identifies levels of service standards for each public facility and sets the frequency of various services, such as garbage pickup and fire response times; Infill Areas have the most intensive and frequent services and the Rural Service Area has the least intensive and frequent services.
FLUE Policy 1.1.6 states: "Within the bridgeless barrier island Rural Service Area location, Charlotte County will prohibit higher densities of new residential development by allowing only for residential uses at very low densities not to exceed one dwelling per acre or one dwelling unit per platted lot consistent with Policy 2.5.3."
FLUE Objective 1.3 is to "use the location and timing of infrastructure and services to direct growth in an orderly and efficient manner." Regarding the provision of infrastructure and services, FLUE Policy 1.3.1 places the
highest priority on the Infill Areas and lowest priority on the Rural Service Area, although FLUE Policy 1.3.2 warns that the County may provide higher levels of infrastructure and services to any area to protect the public health, safety, and welfare or "at the request and capital outlay of the citizens of the area."
FLUE Objective 1.4 is the platted lands strategy, which is to reduce the number of platted vacant lots by one percent annually by January 1, 2005.
FLUE Policy 2.4.1 incorporates into the plan the Charlotte Harbor Management plan, Charlotte Harbor Surface Water Improvement and Management Plan, and Lemon Bay Aquatic Preserve Management Plan.
FLUE Policy 2.5.3 establishes the Bridgeless Barrier Island Overlay District, which comprises the Don Pedro Island chain. This policy states, in part: "In order to reduce the potential for devastation resulting from involuntary natural disasters, this overlay district restricts the intensity of residential development."
FLUE Goal 3 recognizes the supremacy of the U.S. and Florida constitutions. FLUE Objective 3.1 is for the County to respect private property rights. FLUE Policy 3.1.3 is for the County to deprive no person of life, liberty, or property without due process of law.
FLUE Goal 5 is for the County to regulate the use of land "to safeguard the public investment and to protect the population." FLUE Objective 5.1 is for the County to limit densities in the CHHA to 3.5 units per gross acre, although FLUE Policy 5.1.1 recognizes the lower density of one unit per gross acre on the bridgeless barrier islands, subject to one unit per grandfathered lot.
FLUE Objective 5.2 is for the County to "locate public facilities in locales which are less susceptible to severe weather damage and are not within the [CHHA] unless such location is the only one which serves a particular structure's intended public purpose."
Housing Element Policy 1.3.2.e is for the County to promote affordable housing by implementing the community redevelopment plan for Charlotte Harbor. Housing Element Policy 2.1.6 is for the County to consider, when reviewing its land development regulations, the potential damage of catastrophic hurricanes.
Natural Resources Element Goal 1 is: "To conserve, protect, enhance, and where necessary restore Charlotte County's environmental and natural resources to ensure their long-term quality for the future; increase public access to the shoreline and coastal waters; protect human life in areas
subject to natural disaster; and limit public expenditures in areas subject to natural disaster."
Natural Resources Element Objective 1.2 is to protect the quality of surface waters. Natural Resources Element Policy 1.2.2.a is to locate onsite sewage disposal systems as far landward as feasible on waterfront properties to reduce nutrient and pathogen loading into surface waters. Natural Resources Element Policy 1.2.2.b is to prohibit the discharge of runoff, wastewater, or other sources of contamination into surface waters below applicable water quality standards, including those higher water quality standards applicable to Outstanding Florida Waters.
Natural Resources Element Objective 1.3 is for the County to "protect its marine and estuarine habitats and finfish and shellfish resources to ensure long-term viability and productivity for scientific, commercial, sport, and recreational purposes."
Natural Resources Element Objective 1.4 is not to degrade groundwater quality. Natural Resources Element Policy
1.4.1 is to prohibit the storage of hazardous materials in areas recharging the intermediate aquifer. Natural Resources Element Policy 1.4.6 is to continue to require connections to central water and sewer.
Natural Resources Element Objective 1.8 is for the County to "protect existing natural reserves, preserves, and resource conservation areas . . .." Natural Resources Element Policy 1.8.1 is for the County to apply unspecified "development review criteria" to the aquatic preserves, Don Pedro State Park, and Port Charlotte Beach State Park partly or wholly within the Bridgeless Barrier Island Overlay District, although it is unclear exactly what development the County would be permitting in these preservation areas.
Natural Resources Element Objective 1.13 is for the County to "protect its beach and dune systems, including native dune vegetation, from human induced erosion." Natural Resources Element Policy 1.13.3 prohibits all construction activity seaward of the Coastal Construction Control Line except as permitted by the Department of Environmental Protection under Chapter 161, Florida Statutes.
Natural Resources Element Objective 1.16 is for the County to "reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the [CHHA] except as necessary to ensure public health and safety." Natural Resources Element Policy 1.16 identifies the CHHA as "all areas designated by the Southwest Florida Regional Planning Council as requiring evacuation in the event of a landfalling Category I hurricane."
Natural Resources Element Policy 1.16.2 provides:
Within the [CHHA], Charlotte County will prohibit new publicly funded buildings, except for restrooms and other structures including, but not limited to: boat ramps boat docks, picnic shelters, bridge tender's building, landscape or facility maintenance sheds, boat lock, and food or rental concession stand, along with the necessary water, sewer and road infrastructure which are appropriate and necessary for public use and recreation and cannot be located elsewhere. Public buildings and structures along with the necessary water, sewer and road infrastructure associated with essential life safety services, such as police/sheriff district stations, fire stations, or emergency medical service stations may be developed or redeveloped in [CHHA] as needed to protect the public health, safety, and welfare. . . .
Natural Resources Element Policy 1.16.6 is for the County to "actively facilitate" the removal of density from the CHHA by plat vacation and other means. Natural Resources Element Policy 1.16.7 provides that owners of land in the Category 1 hurricane vulnerability zone may transfer their development rights elsewhere in the County.
Natural Resources Element Objective 1.17 is to start reducing hurricane evacuation times by 2000.
Natural Resources Element Objective 1.19 is for the County to "limit additional public investment in the [CHHAs] except as necessary to ensure public health or safety." Natural Resources Element Policy 1.19.1 is for the County to
"prohibit the construction or reconstruction of County funded facilities or infrastructure in the [CHHA] except for recreation facilities and those necessary to ensure public health and safety." Natural Resources Element Policy 1.19.2 is for the County to use its eminent domain power and regulatory authority to relocate threatened or damaged public structures and infrastructure landward of the CHHA when appropriate.
Natural Resources Element Objective 1.20 is for the County to "direct concentrations of population away from [CHHAs]."
Ultimate Findings of Fact
Public Participation and Standing of Petitioners Plummer
Petitioners Columbia and Petitioner Jordan failed to prove to the exclusion of fair debate that the contents or implementation of the public-participation procedures failed to assure broad and effective participation by all interested residents in the preparation of the Plan. The County complied in all respects with all applicable requirements of public participation.
Petitioners Plummer proved that each of them is an affected person. Each of them owns or operates a business in Charlotte County. Individually and on behalf of The
Historical Knights Bldg., Inc., Plummer submitted objections, recommendations, and comments during the period between the transmittal and adoption of the plan. Plummer submitted these objections, recommendations, and comments to an agent or subdivision of the County, and they pertained to matters directly involved with the plan that was then under preparation.
Historic Resources
Petitioners Plummer proved to the exclusion of fair debate that the plan is inconsistent with the requirement of identifying any historic districts on the FLUM. Charlotte County had created an historic district prior to the adoption of the FLUM in October 1997.
The FLUM--i.e., Future Land Use Map Series No. 6-- contains historically significant properties. Although the properties are not well identified on the FLUM, Petitioners Plummer failed to prove to the exclusion of fair debate that the plan, as a whole, fails to satisfy this requirement, considered within the context of all applicable requirements.
For the same reasons, Petitioners Plummer failed to prove to the exclusion of fair debate that the existing land use maps fail to designate historic resources. Historic Preservation Element Maps 9.1 and 9.2 sufficiently designate historic resources to satisfy this criterion.
Petitioners Plummer proved to the exclusion of fair debate that the plan lacks any operative provision to preserve or sensitively adapt historic resources.
An objective promising, by June 1, 1999, to "develop a program . . . [to] protect the County's historical and archaeological resources" is not an objective, but only a promise to adopt such an objective in the future. In the meantime, the missing objective is unavailable as a standard against which to evaluate development orders or to evaluate the internal consistency of other plan provisions. Similarly, a policy to "strive to . . . preserve [and] protect" archaeological sites and historic structures is not a policy to protect these resources.
The objective and policy described in the preceding paragraph are the most demanding provisions contained in the plan for the protection of historic resources or historically significant property. These two instances of the operative provisions of the plan failing to satisfy important requirements are material, especially given the relatively weak plan provisions concerning historic resources, the ambiguities in the FLUM and existing land use map identifying historically significant properties, and the failure of the FLUM to designate the historic district.
Petitioners Plummer failed to prove to the exclusion of fair debate that the plan is inconsistent with any requirements concerning the identification of historically significant and other housing for conservation, rehabilitation, or replacement. The plan sufficiently identifies such housing, and the range of potential action allowed by the requirement--conservation through replacement-- does not support a strict application of the textual part of this requirement. Absent evidence of significant historic housing stock, the County's identification of these properties on the FLUM and existing land use map was sufficient for consistency with this requirement.
Sanitary Sewer and Potable Water
Petitioners Starr, Petitioners Columbia, and Petitioner Jordan failed to prove to the exclusion of fair debate that the plan's requirements of mandatory connections to central water or sewer are inconsistent with any provisions protecting private property rights.
Petitioners Columbia and Petitioner Jordan failed to prove to the exclusion of fair debate that the plan's requirement of mandatory connections to central sewer is unsupported by data and analysis. The record amply supports the County's decision to expand its central sewer system and require owners of improved land to connect when service
becomes available. Petitioners Columbia and Jordan failed to prove to the exclusion of fair debate that the County failed to provide analysis of the fiscal impacts of existing public facility deficiencies, facility capacity by service areas, and replacement strategies. Such analysis is amply presented in the plan and, additionally, the record in these cases.
With respect to Petitioner Jordan's allegations of unsupporting data and analysis, expanding central sewer into the first 12 areas reveals no discriminatory intent against lower-income or group housing, nor any lack of financial feasibility due to the income levels prevailing in the first
12 areas to be served. The evidence suggests that the areas to be served are low-lying, and the infrastructure is vulnerable to damage from coastal storms, including stormwater intrusion into the central sewer system. These facts do not deprive the plan provisions extending central sewer into these areas from support from the data and analysis in light of the greater risks to human and environmental health posed by ongoing reliance upon septic tanks in these low-lying, densely populated areas.
Petitioners Columbia and Jordan failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer are internally inconsistent with any other provisions in the plan.
With respect to Petitioner Jordan's allegations of internal inconsistency, providing central sewer in the CHHA is necessary to ensure public health and safety. Extending central sewer into the CHHA does not violate the plan provision to direct population concentrations away from the CHHA; the areas in question are largely built-out, and the risks posed by the septic tank leachate to human health and environmental resources are substantial and well-documented. The evidence does not suggest that extending central sewer will subsidize or encourage new land development in the CHHA.
The choice of the first 12 areas into which to extend central sewer was clearly driven by legitimate concerns, such as lift-station capacity, environmental sensitivity, and financial feasibility, not illegitimate concerns arising out of housing discrimination. Extending central sewer into the areas selected for the first two phases of the expansion program will clearly reduce negative environmental impacts from wastewater systems and heighten the efficiency of use of the central sewer system. Expanding central sewer will not exceed the capacity of the central sewer system.
Petitioners Columbia failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer deprive the plan of
financial feasibility or operative provisions for the orderly and balanced future economic, social, physical, and environmental development. The record establishes that the requirement of mandatory connections to central sewer helps the plan achieve these requirements.
Petitioners Columbia failed to prove to the exclusion of fair debate that the plan lacks an objective to correct facility deficits and maximize the use of existing facilities and a policy to establish priorities regarding public facilities. Among other provisions, the provisions establishing the USA satisfy these criteria, as between the USA and Rural Service Area, as do the provisions assigning the highest priority, within the USA, to the Infill Areas as opposed to the Suburban Areas.
Petitioners Columbia failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer deprive the plan of the effect of discouraging urban sprawl. To the contrary, the extension of central sewer, with mandatory connections, tends to ameliorate the effects of sprawl by reducing the impacts upon natural resources of sprawling residential development. Given the vast numbers of platted lots and the County's inability to reduce these numbers significantly, the extension
of central sewer to areas already platted and largely developed does not tend to encourage sprawl.
Petitioners Columbia failed to prove to the exclusion of fair debate that the plan lacks a policy to establish criteria, including financial feasibility, in evaluating local capital improvement projects. Capital Improvement Element Objective 1.3 and the ensuing policy cluster--especially Policies 1.3.19 and 1.3.20.i--satisfy this requirement. For the same reasons, Petitioner Jordan failed to prove to the exclusion of fair debate that the plan lacks provisions ensuring financial feasibility
Petitioner Jordan failed to prove to the exclusion of fair debate that the plan lacks an objective to restrict development activities that would damage coastal resources, protect human life, and limit public expenditures in areas subject to natural disasters. FLUE Policy 2.4.1 incorporates the Charlotte Harbor Management Plan, Charlotte Harbor Surface Water Improvement and Management Plan, and the Lemon Bay Aquatic Preserve Management Plan. Natural Resources Element Objective 1.16 is to reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the CHHA, except for reasons of public health and safety. Natural Resources Element Objective 1.17 is to start reducing hurricane evacuation times by 2000.
Natural Resources Objective 1.19 is to limit additional public investment in the CHHA, except for reasons of public health and safety. Natural Resources Element Objective 1.20 is to direct population concentrations away from the CHHA. Various policies within the clusters under these objectives satisfy the other CHHA requirements cited by Petitioner Jordan.
Petitioners Starr have proved to the exclusion of fair debate that the plan provisions requiring mandatory connections to central water, as applied to the Don Pedro island chain, are unsupported by the data and analysis because they accelerate the build-out of the island chain, raise the intensity of residential use of existing and future dwelling units, attract populations to an extremely vulnerable barrier island chain within the CHHA, unnecessarily expose human life to the perils of hurricanes, mandate extremely vulnerable infrastructure investments in the CHHA by island residents without any measurable, compensating gains in public health or safety or environmental enhancement, and increase the consumption of potable water and production of septic tank leachate in an environmentally sensitive area.
Petitioners Starr have proved to the exclusion of fair debate that the plan provisions requiring mandatory connections to central water, as applied to the Don Pedro island chain, are internally inconsistent with plan provisions
discouraging urban sprawl, such as FLUE Goal 1 to prevent urban sprawl; FLUE Objective 1.1 to direct at least of 90 percent of urbanized development into the USA; FLUE Objective
1.3 to use the location and timing of infrastructure and services to direct growth in an orderly and efficient manner; FLUE Policy 1.3.1 to prioritize the provision of infrastructure and services first to Infill Areas, then to Suburban Areas, and last to the Rural Service Area; FLUE Objective 1.4 to reduce the number of platted vacant lots by one percent annually by 2005; FLUE Objective 1.6 to ensure that the location and intensity of development to coincide with the availability of facilities and appropriate topography and soil conditions; Natural Resources Element Objective 1.3 to protect marine and estuarine habitats; Natural Resources Element Objective 1.8 to protect existing natural preserves; Natural Resources Element Objective 1.16 to reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the CHHA, except for reasons of public health and safety; Natural Resources Element Objective 1.17 to start reducing hurricane evacuation times by 2000; Natural Resources Element Objective 1.19 to limit public investment in the CHHA, except for reasons of public health and safety; and Natural Resources Element Objective 1.20 to direct concentrations of population away from the CHHA.
However, Petitioners Starr failed to prove to the exclusion of fair debate that the plan lacks objectives and policies to protect the coastal environment and conserve potable water resources.
CONCLUSIONS OF LAW
Jurisdiction, In-Compliance Determination, Standing, and Standard of Proof
The Division of Administrative Hearings has jurisdiction over the subject matter. 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. All references to Chapter 9J-5 are to Chapter 9J-5, Florida Administrative Code.)
A plan or plan amendment is "in compliance" with Chapters 163 and 9J-5 if it is "consistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with this part . . .." Chapter 9J-5 refers to these "requirements" as "criteria," and the two words may be used interchangeably.
Section 163.3177(10)(a) provides that a plan is consistent with the State comprehensive plan and regional policy plan if it is "compatible with" and "furthers" such
plans. "Compatible with" means "not in conflict with," and "furthers" means "to take action in the direction of realizing goals or policies of the state or regional plan." Section 163.3177(10)(a) adds that the determination of consistency with the State or regional plan requires consideration of the plan as a whole.
Chapters 163 and 9J-5 do not define "consistency," except with respect to the consistency of the plan with the regional and state plans. A plan is obviously consistent with the requirements of Chapters 163 and 9J-5 if it satisfies each and every requirement.
However, for plans that do not satisfy each and every requirement of Chapters 163 and 9J-5, consistency requires a determination whether a plan, as a whole, is in conflict with any requirement and takes action in the direction of realizing the unsatisfied requirements. This determination requires, among other things, consideration of the purposes of the unsatisfied requirements in light of the entire plan and Chapters 163 and 9J-5. Cf. B & H Travel Corporation v. Department of Community Affairs, 602 So. 2d 1362 (Fla. 1st DCA), rev. denied 613 So. 2d 1 (Fla. 1992).
Numerous criteria are especially crucial to the comprehensive planning envisioned by Chapters 163 and 9J-5. Such criteria include internal consistency, without which
implementation and enforcement of the plan are jeopardized; supporting data and analysis, without which the plan may not respond to the planning challenges confronting the local government; and various substantive criteria that are integral to successful planning, such as level of service standards for all required public facilities, concurrency between the available public facilities and the demands of development, and overall financial feasibility. The failure of a plan to satisfy any one of these numerous crucial criteria more likely undermines the entire planning effort than does the failure of a plan to satisfy noncrucial criteria, although, in all cases, the consistency determination is ultimately dependent upon the facts of each case.
Section 163.3184(9) provides that, in cases in which DCA has issued a notice of intent to find the plan or plan amendment in compliance with Chapter 163, an "affected person" may file a petition challenging whether the plan or plan amendment is in compliance with Chapters 163 and 9J-5.
Section 163.3184(1)(a) provides:
"Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and [certain] adjoining local governments . . .. Each person, other than an adjoining local government, in order to quality under this definition, shall also have submitted oral or written comments,
recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment.
Section 163.3184(9)(a) provides that, in order to obtain a determination that a plan or plan amendment is not in compliance, the affected person challenging a plan or plan amendment that DCA has determined is in compliance must prove to the exclusion of fair debate that the plan or plan amendment is inconsistent with criteria of Chapters 163 and
9J-5.
Public Participation
Section 163.3181(1) declares the Legislature's intent for the "public to participate in the comprehensive planning process to the fullest extent possible." Section 163.3181(1) directs local governments to adopt procedures to provide "effective public participation" in the planning process and to give real property owners notice of all official actions regulating the use of their property.
Section 163.3181(2) requires that the procedures provide for "broad dissemination of the proposals and alternatives, opportunities for written comments, public hearings as provided herein, provisions for open discussion, communications programs, information services, and consideration of and response to public comments."
Rule 9J-5.004(1) requires that each local government "adopt procedures to provide for and encourage public participation in the planning process." Rule 9J- 5.004(2) requires that the procedures include notice to real property owners of official actions that may affect the use of their property, notice to the general public, opportunities for the public to provide written comments, required public hearings, and consideration of and response to public comments.
The statutory definition of "in compliance" omits mention of Section 163.3181, but, as already noted, incorporates all of Chapter 9J-5. Rule 9J-5.005(8)(c) requires the local government to "consider. . . and adopt. . . [the plan or plan amendment] in accordance with the procedures relating to public participation . . .." Thus, provisions of Chapter 9J-5 requiring that a local government adopt procedures for public participation and comply with those procedures when adopting a plan or plan amendment are bases for a determination that a plan or plan amendment is not in compliance.
Section 163.3174(4) provides that the local planning agency shall have the "general responsibility" for conducting the planning program.
Historic Resources
Chapters 163 and 9J-5 establish numerous criteria for historic resources in terms of data, analysis, and operative plan provisions.
Rule 9J-5.003(58) defines "historic resources" as "all areas, districts or sites containing properties listed on the Florida Master Site File, the National Register of Historic Places, or designated by a local government as historically, architecturally, or archaeologically significant."
In terms of data, Rule 9J-5.006(1)(a)11 requires that the existing land use map show "historic resources." Rule 9J-5.010(1)(g) requires an inventory of, and generalized locations for, "historically significant housing" listed on the Florida Master Site File, National Register of Historic Places, or designated by local ordinance as "historically significant."
In terms of operative plan provisions, seven provisions of Chapter 9J-5 establish criteria for operative plan provisions: three of these provisions require objectives, three of these provisions require policies, and one provision requires a plan provision that resembles a policy, but is not designated explicitly as one. These
Chapter 9J-5 requirements complement Chapter 163 requirements concerning operative provisions.
Section 163.3177(6)(f)1.e requires that the operative provisions (i.e., standards, plans, and principles) of the housing element include a "[p]rovision for [the] identification of historically significant . . . housing for purposes of conservation, rehabilitation, or replacement." Rule 9J-5.006(3)(b)4 requires an objective to "[e]nsure the protection of historic resources." Rule 9J- 5.010(3)(b)5 requires an objective for the "identification of historically significant housing."
Section 163.3177(6)(g)10 requires that the coastal management element, which is required in Charlotte County, include one or more policies to attain the objective of the"[p]reservation, including sensitive adaptive use[,] of historic and archaeological resources." Rule 9J-5.012(3)(b)10 requires an objective for the "protection, preservation or sensitive reuse of historic resources." Section 163.3178(2)(b) requires that this element contain "plans and principles to be used to control development and redevelopment to eliminate or mitigate the adverse impacts on . . . historical and archaeological sites."
Section 163.3177(6)(a) requires that the FLUM "identify and depict historic district boundaries" and
"designate historically significant properties meriting protection." Rule 9J-5.006(3)(c)8 requires a policy for the "[i]dentification, designation and protection of historically significant properties." Rule 9J-5.010(3)(c)3 requires a policy for the "[i]dentification and improvement of historically significant housing." Rule 9J-5.012(3)(c)11 requires a policy for "[h]istoric resource protection, including historic site identification and establishing performance standards for development and sensitive reuse of historic resources."
Rule 9J-5.015(4)(a) requires that the Intergovernmental Coordination Element "establish a process to determine if development proposals would have significant impacts on . . . state or regional resources . . .." Although this rule does not define "state or regional resources," historic resources of state or regional significance are presumably included within the rule, which elsewhere provides for a development review process that includes, among other governmental agencies, the Florida Department of State, Division of Historical Resources.
Rule 9J-5.015(4)(a)5.a requires that the Intergovernmental Coordination Element "expressly provide for and clearly establish a development review process . . . to determine if development proposals would have significant
impacts on the identified resources, facilities or community characteristics, and to mitigate such impacts." As provided by Rule 9J-5.015(4)(a)5.a(iii), the required provisions must require, among other procedures, intergovernmental review by adjacent and other affected local governments of any development proposal "likely to result in significant impacts." This rule "encourage[s]" local governments to include other local, regional, and state agencies, including the Florida Department of State, Division of Historical Resources, in the process of intergovernmental review. In the event of disagreement, Rule 9J-5.015(4)(a)5.a.(iv) requires that the parties refer the matter to the dispute process required to be included in the Intergovernmental Coordination Element by Rule 9J-5.015(4)(b).
The provisions of the state comprehensive plan concerning historic resources are not rigorous. Section 187.201(19)5 is: "Encourage the rehabilitation and sensitive adaptive use of historic properties through technical assistance and economic incentive programs." Section 187.201(19)6 is: "Ensure that historic resources are taken into consideration in the planning of all capital programs and projects at all levels of government and that such programs and projects are carried out in a manner which recognizes the preservation of historic resources."
Sanitary Sewer and Potable Water
Section 163.3177(8) and Rule 9J-5.005(2)(a) require that the plan be supported by data and analysis.
Rule 9J-5.016(2)(b) requires that the plan be based on analysis of the "general fiscal implications of the existing facility deficiencies and future needs for each type of public facility" with consideration of the "needed improvements" and "need among facility types." Rule 9J- 5.016(2)(c) requires that the plan be based on analysis of the costs of needed capital improvements to mitigate existing capital deficiencies and accommodate new growth.
Section 163.3177(6)(c) requires, for sewer and water, analysis of the "problems and needs" and general facilities required to meet these problems and needs. Also, this section requires, for areas served by septic tanks, soils surveys indicating the suitability of the soils for septic tanks.
Rules 9J-5.011(1)(f)1-4 require analysis of sewer and water facility capacities, by service area, with consideration of existing conditions regarding design capacity and current demand, projected demand based on current levels of service standards, the general performance of existing facilities, the problems and opportunities for facilities
replacement and expansion, and the suitability of soils for septic tanks.
266. Rules 9J-5.010(2)(b), (d), (e), and (f) require analysis of future housing needs, including affordable housing; the extent to which the private sector can satisfy the housing needs; the existing housing delivery system; and means for accomplishing affordable housing, the elimination of substandard housing, group-home housing, and "identification of conservation, rehabilitation or demolition activities and historically significant housing or neighborhoods."
Rule 9J-5.006(2)(e) requires analysis of the proposed development and redevelopment of floodprone areas.
Rule 9J-5.012(2)(e)3 requires the identification of CHHAs and infrastructure located within CHHAs and the potential for the relocation of such infrastructure.
Rule 9J-5.016(2) requires the analysis of public facilities in terms of needs, fiscal implications, priority, their impact on efficient land use, and the government's ability to finance their construction.
Sections 163.3177(2) and (9)(b) and Rule 9J- 5.005(5) require that a plan be internally consistent.
Section 163.3177(1) requires that a plan prescribe the "principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and
fiscal development of the area." Rule 9J-5.003(54) defines a "goal" as "the long-term end toward which programs or activities are ultimately directed." Rule 9J-5.003(86) defines an "objective" as "a specific, measurable, intermediate end that is achievable and marks progress toward a goal." Rule 9J-5.003(95) defines a "policy" as "the way in which programs and activities are conducted to achieve an identified goal." Section 163.3177(9)(e) requires "[s]pecific measurable objectives," and Sections 163.3177(9)(f) and (g) require policies "to guide future decisions in a consistent manner" and "to ensure that comprehensive plans are implemented."
Section 163.3177(2) requires that a plan shall be "economically feasible." Rule 9J-5.016(3)(c)1.f requires a policy to create programs or activities concerning financial feasibility.
Section 163.3177(6)(f)1.g requires that a plan contain operative provisions to create or preserve affordable housing and to avoid the concentration of affordable housing in specific areas.
Rule 9J-5.011(2)(b) requires objectives to address correcting facility deficiencies, increasing facility capacity to meet future needs, maximizing the use of existing
facilities and discourage urban sprawl, conserving potable water, and protecting natural drainage features.
Rules 9J-5.011(2)(c) requires policies for implementation activities for establishing priorities for the elimination of facility deficiencies, setting and using level of service standards, setting and using potable water conservation strategies, regulating land use to protect natural drainage features, and setting stormwater quality standards.
Rule 9J-5.016(3) requires a variety of goals, objectives, and policies concerning capital improvements. The required goal is the timely and efficient provision of public facilities through the use of sound fiscal policies. Objectives must include the elimination of existing deficiencies, "limitation of public expenditures that subsidize development in [CHHAs]," coordination of land use decisions so as to ensure the satisfaction of all adopted level of service standards, assurance that future development bears its proportionate share of the cost of facility improvements, and demonstration of the local government's financial ability to meet the demands of concurrency. Rule
9J-5.016(4) requires a five-year schedule of capital improvements, identification of feasible revenue sources to
meet scheduled expenses, and provisions to assure the implementation of the capital improvement program.
Rule 9J-5.006(3)(b)8 requires an objective to discourage the proliferation of urban sprawl. Rule 9J- 5.006(5) establishes numerous criteria "regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources."
Section 163.3178(1) states:
The Legislature recognizes there is significant interest in the resources of the coastal zone of the state. Further, the Legislature recognizes that, in the event of a natural disaster, the state may provide financial assistance to local governments for the reconstruction of roads, sewer systems, and other public facilities. Therefore, it is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster.
Rule 9J-5.012(3)(a) requires the plan to contain goals to "restrict development activities that would damage or destroy coastal resources, and protect human life and limit public expenditures in areas subject to destruction by natural disasters."
Section 163.3177(6)(g) requires objectives for the "[m]aintenance, restoration, and enhancement of the overall quality of the coastal zone environment . . ."; "[l]imitation of public expenditures that subsidize development in [CHHAs]"; and "[p]rotection of human life against the effects of natural disasters."
Rule 9J-5.012(3)(b) provides that the plan shall contain objectives to:
Protect, conserve or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat;
Maintain or improve estuarine environmental quality;
* * *
Limit public expenditures that subsidize development permitted in [CHHAs]
. . . except for restoration or enhancement of natural resources.
Direct population concentrations away from known or predicted [CHHAs].
Rule 9J-5.012(3)(c) provides that the plan shall contain policies identifying "regulatory or management techniques for:"
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.
3. General hazard mitigation including regulation of building practices, floodplains, beach and dune alteration,
stormwater management, sanitary sewer and septic tanks, and land use to reduce the exposure of human life and public and private property to natural hazards . . ..
5. Post-disaster redevelopment . . ..
Designating [CHHAs] and limiting development in these areas.
The relocation, mitigation or replacement, as deemed appropriate by the local government, of infrastructure presently within the [CHHA] when state funding is anticipated to be needed[.]
Rule 9J-5.011(2)(b)4 requires an objective to "[a]ddress conserving potable water resources."
Section 187.201(15)(a) provides: "Florida shall protect private property rights and recognize the existence of legitimate and often competing public and private interests in land use regulations and other government action."
Consistency Determinations
For the reasons already noted, Petitioners Starr have proved to the exclusion of fair debate that the plan requirement of mandatory connections to central water, as applied to the Don Pedro island chain, is inconsistent with the requirements of supporting data and analysis and internally inconsistent with numerous other plan provisions tending to discourage urban sprawl. This inconsistency finding is based on consideration of the plan requirement of mandatory connections to central water on the bridgeless
barrier island chain, construed as part of the entire plan; the crucial requirements of supporting data and analysis and internal consistency, given due weight among all of the requirements of Chapters 163 and 9J-5; and the factual record developed at the hearing.
For the reasons already noted, Petitioners Plummer have proved to the exclusion of fair debate that the FLUM is inconsistent with the requirement of identifying the historic district and the plan is inconsistent with the requirement of an operative provision to preserve or sensitively adapt historic resources. This inconsistency finding is based on consideration of all of the plan provisions addressing historic resources; the role of these planning requirements among all the requirements contained in Chapters 163 and 9J-5; and the factual record developed at the hearing.
These inconsistency findings result in a determination that the plan is not in compliance for the reasons set forth in the preceding two paragraphs.
None of the petitioners has proved any of the remaining grounds for a finding of inconsistency or determination of noncompliance.
It is
RECOMMENDED that, pursuant to Section 163.3184(9)(b), Florida Statutes, the Department of Community Affairs submit the recommended order to the Administration Commission for final agency action.
DONE AND ENTERED this 11th day of February, 2000, in Tallahassee, Leon County, Florida.
___________________________________ ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2000.
COPIES FURNISHED:
Robert J. Starr
Post Office Box 5337
Grove City, Florida 34224
Betty L. Brenneman Post Office Box 67
Placida, Florida 33946
Suzanne Neyland Post Office Box 849
Placida, Florida 33946-0849
John G. Columbia
2150 Cedarwood Street
Port Charlotte, Florida 33948
Daniel R. Fletcher Post Office Box 2670 Port Charlotte, Florida | 33949 |
Eugene J. Haluschak 3191 Lakeview Boulevard Port Charlotte, Florida | 33948 |
John L. Harmon 3083 Beacon Drive Port Charlotte, Florida | 33952 |
Rhonda Jordan 4437 Parmely Street Charlotte Harbor, Florida | 33980 |
Robert K. Lewis, Jr., Attorney 6237 Presidential Court
Suite A
Fort Myers, Florida 33919-3508
Shaw P. Stiller
Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Martha Young Burton Brendan Bradley Carl Kitchner
Renee Francis Lee Assistant County Attorneys Charlotte County
18500 Murdock Circle
Port Charlotte, Florida 33948-1094
Cari L. Roth, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 315
Tallahassee, Florida 32399-2100
Steven M. Seibert, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
10 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| May 17, 2000 | Final Order filed. |
| Feb. 25, 2000 | Petitioners Exceptions to the Recommended Order of the Administrative Law Judge in the Referenced Case filed. |
| Feb. 11, 2000 | Recommended Order sent out. CASE CLOSED. Hearing held June 1, 2 and 4, July 20 and 21, and October 19-23, 1998. |
| Sep. 07, 1999 | Charlotte County`s Proposed Recommended Order w/cover letter filed. |
| Aug. 31, 1999 | (M. Burton) Amended Certificate of Service (Charlotte County`s Proposed Recommended Order) (filed via facsimile). |
| Aug. 31, 1999 | Charlotte County`s Proposed Recommended Order; Department of Community Affairs` Notice of Filing Proposed Recommended Order; Recommended Order (for Judge Signature) filed. |
| Aug. 13, 1999 | Department of Community Affairs` Consented Motion to Designate Filing Date for Proposed Recommended Orders (filed via facsimile). |
| Aug. 06, 1999 | Transcripts of Proceedings (10 volumes, tagged) filed. |
| Nov. 02, 1998 | Respondent`s Response to Petitioners` Request for Interrogatories From Respondent Charlotte County, Florida filed. |
| Nov. 02, 1998 | Petitioner Rhonda Jordan`s Composite Exhibits No. 13 and 14 as well as Ms. Jordan`s two lists of individual photos filed. |
| Nov. 02, 1998 | Petitioners First Interrogatory to Respondent Charlotte County, Florida; Petitioners Request for First Admission From Respondent Charlotte County, Florida filed. |
| Nov. 02, 1998 | (J. Columbia, D. Fletcher, E. Haluschak, J. Harmon) Motion to Compel Discovery filed. |
| Oct. 19, 1998 | CASE STATUS: Hearing Held. |
| Oct. 19, 1998 | Letter to M. Burton from G. Maier Re: DOAH Hearing on County`s Comp. Plan filed. |
| Oct. 19, 1998 | CASE STATUS: Hearing Held. |
| Aug. 03, 1998 | Supplemental Notice of Hearing sent out. (hearing set for Oct. 19-23, 1998; 10:00am; Port Charlotte) |
| Jul. 31, 1998 | Letter to Judge Meale from M. Burton Re: Witness availability filed. |
| Jul. 31, 1998 | Letter to Mesdames Brenneman, Neyland & Jordan, Messrs Star, Colubia, Fletcher, Haluschak, Harmaon & Plummer Re: M. Burton Re: County`s witnesses from filed. |
| Jul. 20, 1998 | Respondent, Charlotte County`s Motion to Quash Subpoena Duces Tecum filed. |
| Jul. 17, 1998 | (R. Starr) Request for Motion to Dismiss (filed via facsimile). |
| Jul. 16, 1998 | Letter to Judge Meale from J. Columbia (RE: Request to be excused from hearing) (filed via facsimile). |
| Jul. 15, 1998 | Respondent, Charlotte County`s Motion to Quash Subpoena Duces Tecum (filed via facsimile). |
| Jul. 15, 1998 | (4) Subpoena Duces Tecum (R. Jordan); (10) Affidavit of Service of Subpoena; (6) Subpoena Ad Testificandum filed. |
| Jun. 11, 1998 | (Petitioner) Second Amendment to Petition Challenging Finding of Comprehensive Plan Amendments in Compliance filed. |
| Jun. 11, 1998 | Letter to Judge Meale from R. Jordan Re: Subpoenas filed. |
| Jun. 10, 1998 | (Petitioners) Amended Petition for Formal Administrative Hearing filed. |
| Jun. 09, 1998 | Supplemental Notice of Hearing sent out. (hearing set for July 20-21, 1998; 10:00am; Port Charlotte) |
| Jun. 04, 1998 | (E. Plummer) Amendment to Petitioner`s Amended Petition filed. |
| Jun. 04, 1998 | (J. Columbia, D. Fletcher, E. Haluschak, J. Harmon) Statement on How Petitioners Substantial Interest are Affected by actions or Proposed Actions of Charlotte County and the Department of Community Affairs filed. |
| Jun. 01, 1998 | Letter to Judge Meale from D. Ross Re: Subpoena filed. |
| Jun. 01, 1998 | Department of Community Affairs` Prehearing Statement filed. |
| Jun. 01, 1998 | Respondent, Charlotte County`s Motion for Protective Order as to Subpoena Ad Testificandum; Petitioners Motion in Limine filed. |
| Jun. 01, 1998 | Respondent, Charlotte County`s Motion for Protective Order as to Subpoena Ad Testificandum filed. |
| May 29, 1998 | Respondent Charlotte County`s Motion for Protective Orders and to Quash Subpoenas Ad Testificandum Served on the Charlotte County Attorney Renee Francis Lee, the Charlotte Deputy County Attorney Preston T. Everett, Jr. and Assistant County Attorney r |
| May 28, 1998 | (R. Starr, S. Neyland) Motion in Opposition to Respondent Charlotte County Florida Motion for a Pretrial Conference and Stipulation; Motion to Compel Discovery filed. |
| May 28, 1998 | Respondent Charlotte County`s Motion for Protective Orders and to Quash each of the Subpoenas ad Testificandum Served on the Charlotte County Commissioners (filed via facsimile). |
| May 27, 1998 | (2) Respondent`s Response to Petitioners` Request for Interrogatories From Respondent Charlotte County, Florida (filed via facsimile). |
| May 27, 1998 | (Petitioner) Request for Subpoena (filed via facsimile). |
| May 27, 1998 | (R. Lewis) Appearance of Counsel (filed via facsimile). |
| May 27, 1998 | (J. Columbia, D. Fletcher, E. Haluschak, J. Harmon) Motion to Compel Discovery; Motion in Opposition to Charlotte County, Florida`s Motion for Pretrial Conference and Stipulation filed. |
| May 27, 1998 | Respondent, Charlotte County`s Motion for Protective Order as to Subpoena Ad Testificandum filed. |
| May 27, 1998 | Subpoena ad Testificandum (R. Jordan); Affidavit of Service of Subpoena filed. |
| May 26, 1998 | (15) Subpoena ad Testificandum (R. Jordan); (12) Affidavit of Service of Subpoena ; (6) Subpoena Duces Tecum; (6) Affidavit of Service of Subpoena ; (3) Affidavit of Service filed. |
| May 22, 1998 | (2) Respondent`s Response to Petitioners` Request for Admissions from Respondent Charlotte County, Florida (filed via facsimile). |
| May 20, 1998 | Respondent Charlotte County`s Motion for a Prehearing Conference and Stipulation (filed via facsimile). |
| May 18, 1998 | Letter to Judge Meale from D. Coppola Re: Unnecessary mandate filed. |
| May 14, 1998 | Order Denying Charlotte County`s Motion to Dismiss sent out. |
| Apr. 27, 1998 | Memorandum in support of Respondent Charlotte County`s Motion to Dismiss filed. |
| Apr. 27, 1998 | (Petitioner) Notice of Serving Request for Admissions; Petitioners Robert J. Starr, et al., First Set of Interrogatories to Respondent Charlotte County; Petitioners Request for Admissions from Respondent Charlotte County, Florida filed. |
| Apr. 27, 1998 | (Petitioner) Notice of Service of Interrogatories filed. |
| Apr. 24, 1998 | Order of Consolidation and Notice of Hearing sent out. (CN002926) (98-0449GM, 98-0701GM, 98-0702GM & 98-1634GM are consolidated; hearing set for June 1-2, 1998; 10:00am; Prt. Charlotte) |
| Apr. 24, 1998 | Petitioner`s Request for First Admission from Respondent Charlotte County, Florida filed. |
| Apr. 21, 1998 | Order Denying Motion for Default sent out. |
| Apr. 16, 1998 | (Petitioner) Motion for Default filed. |
| Apr. 16, 1998 | Respondent Charlotte County`s Objections to Petitioners` Motion for Default (filed via facsimile). |
| Apr. 09, 1998 | Order of Consolidation sent out. (Consolidated cases are: 98-0449GM, 98-0701GM & 98-0702GM). CONSOLIDATED CASE NO - CN002926 |
| Apr. 03, 1998 | Notice of Hearing sent out. (hearing set for June 1-2, 1998; 10:00am; Port Charlotte) |
| Feb. 02, 1998 | Notification Card sent out. |
| Jan. 26, 1998 | Agency Referral Letter; Amended Petition for Formal Administrative Hearing filed. |
| Jun. 01, 1995 | Petitioners Motion for Oral Argument on Charlotte County Motion for Protective Order and to Quash Subpoenas as Served by Petitioners on All Charlotte County Commissioners filed. |
| Jun. 01, 1995 | Department of Community Affairs` Motion to Strike and Motion in Limine filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 16, 2000 | Agency Final Order | |
| Feb. 11, 2000 | Recommended Order | Plan is not in compliance due to a provision regulating a mandated connection to central water on a bridgeless barrier island, which is unsupported by data and analysis, and is internally inconsistent with plan provisions discouraging urban sprawl. |
