STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARY ROSE SMITH, LINDA ANNE ) YORI, ROBERT MOORE, BAY COUNTY ) AUDUBON SOCIETY, and ST. ) ANDREWS BAY RESOURCE MANAGEMENT ) ASSOCIATION, )
)
Petitioners, )
)
vs. )
)
CITY OF PANAMA CITY, )
)
Respondent. )
Case No. 04-4364GM
)
RECOMMENDED ORDER
Notice was given and a final hearing was held in this case on June 7-9, 2005, pursuant to Sections 120.569, 120.57(1), and 163.3187(3)(a), Florida Statutes. The final hearing was conducted in Panama City, Florida, by Charles A. Stampelos, Administrative Law Judge.
APPEARANCES
For Petitioners: David J. Russ, Esquire
601 South Main Street, Suite 9J-5 Gainesville, Florida 32601-6719
For Respondent: David A. Theriaque, Esquire
Theriaque Vorbeck & Spain 1114 East Park Avenue
Tallahassee, Florida 32301-2651
Tiffany A. Brown, Esquire Bryant & Higby
833 Harrison Avenue
Panama City, Florida 32402-0860
STATEMENT OF THE ISSUE
The issues in this case are (1) whether the City of Panama City's (the City) Small Scale Comprehensive Plan Amendment No. 04-20S adopted by Ordinance No. 1985 (the Plan Amendment) is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes, and (2) whether the petition challenging the Plan Amendment should be dismissed as untimely.
PRELIMINARY STATEMENT
On November 9, 2004, the City Commission of Panama City, Florida (the Commission) adopted Ordinance No. 1985, which amends the City's Future Land Use Map (FLUM) for an approximately 6.8-acre parcel of land (the Property)1 annexed into the City at the same meeting. Ordinance No. 1985 changed the land use designation of the 6.8 parcel from "Conservation" in the Bay County FLUM to "Residential-Low Density (RLD)" in the City's FLUM.
On December 9, 2004, Petitioners, Mary Rose Smith, Linda Anne Yori, Robert Moore, St. Andrews Bay Resource Management Association, and Bay County Audubon Society (collectively referred to as Petitioners) contested the Plan Amendment. A Petition Challenging Compliance of Small Scale Amendment and Request for Formal Hearing was received by the Division of Administrative Hearings (Division) via facsimile on December 9, 2004. Page 18 of this petition contained a certificate of
service signed by Petitioners' counsel; however, the 19th page of the petition, which contained the names and addresses of the two persons served, was not received by the Division on December 9, 2004. Rather, on December 10, 2004, a copy of the 19th page of the petition was filed by facsimile with the Division.
The petition alleged the Plan Amendment is internally inconsistent with the City's Comprehensive Plan (the Plan) and is not in compliance with Sections 163.3177 or 163.3178, Florida Statutes; the State's Comprehensive Plan; the West Florida Strategic Regional Policy Plan; and Florida Administrative Code Chapter 9J-5.
After an Initial Order was issued and responses filed, the matter was set for hearing to commence in Panama City, Florida, on February 8-11, 2005.
On December 21, 2004, Petitioners filed several motions to disqualify the City's counsel. After receiving a response, this motion was denied on January 3, 2005.
The City filed a motion to dismiss the petition based on the absence of the final page of the petition when it was received by the Division on December 9, 2004. The City contended that the petition was incomplete and not filed when it was received at the Division by facsimile on December 9, 2004, and, as a result, was untimely. The motion to dismiss was denied by Order dated January 3, 2005. The City's motion for
clarification was also denied by Order dated January 7, 2005. The petition was timely filed and the prior rulings are reaffirmed.
On January 24, 2005, Petitioners filed another motion to disqualify the City's counsel, which was ultimately withdrawn.
On April 5, 2005, another continuance was granted and the hearing was re-set for June 7-9, 2005.
The record contains many motions to compel and requests for sanctions filed by the City, some of which have been denied.
Any pending motions for sanctions filed by the City are denied.
The parties filed unilateral pre-hearing stipulations on June 3, 2005 (the City) and June 6, 2005 (Petitioners) and the final hearing took place on June 7-9, 2005.
Joint Exhibits (JE) numbered 1 through 13 were admitted into evidence.
Petitioners called several witnesses: Ken Hammons, the City Manager; Ronald L. Thomasson, the City's former Planning Director; Daniel Shaw, A.I.C.P., Bay County's Development Services Director; Diane Athnos, an Environmental Permitting Manager with the Florida Department of Environmental Protection (DEP); D. Ray Eubanks, Jr., the Plan Review Manager with the Florida Department of Community Affairs (DCA); Jeff Bielling, an expert in comprehensive planning and a planner with DCA; Mark Thompson, team leader for the National Marine Fisheries Service;
Bob Majka, Bay County's Chief of Emergency Services; Mark Llewellyn, P.E., president of Genesis Group; M. Andrew Barth, an environmental consultant with Biological Research Associates; Daniel Childs, acting City planner; Terry Joseph, Interim Executive Director of the West Florida Regional Planning Council; John J. Benton, Jr.; Peter Berry; Robert E. Moore; Rosalie Shaffer; Linda Anne Yori; Candis Harbison; and Mary Rose Smith. Petitioners' Exhibits (PE) numbered 28 through 30, 50, 60, 63-64, 69, 98A through 98D were admitted into evidence.
The City called James H. Slonina, P.E., an expert in civil engineering; Mark Friedemann, an expert in wildlife, ecology, and biology; and Gail Easley, A.I.C.P., an expert in land use planning. The City's Exhibits (CE) numbered 1 through 3, 5, and
16 were admitted into evidence.
The Transcript (T) (Volumes I through IV) of the final hearing was filed with the Division on August 1, 2005.
Petitioners filed a motion requesting an extension of time to file their proposed recommended orders (PROs). Over objection, the motion was granted and the PROs were due on or before August 18, 2005. Petitioners and the City filed motions requesting acceptance of their PROs. The motions are granted and the PROs were timely filed on August 19, 2005. However, Petitioners were ordered to file a complete PRO because there were several pages missing. On August 31, 2005, Petitioners
filed a second PRO and then another PRO on September 6, 2005, followed by the filing of additional pages missing from the prior filing. The City filed a motion to strike Petitioners' PRO filed on August 31, 2005, because, in part, this PRO proposed findings of fact which were not supported by the record of the final hearing. The City also requested attorney's fees and costs. Petitioners filed two responses. The City's motion is denied. The City's PRO, and Petitioners' PRO filed on August 19, 2005, as amended on August 31, 2005, with missing pages, have been considered in preparing this Recommended Order to the extent they are supported by evidence adduced during the final hearing as reflected in the exhibits and Transcript of the final hearing. See pages 4-5, supra.
FINDINGS OF FACT
The Parties
Robert E. Moore owns a home and resides at 1310 Kristanna Drive, Panama City, Florida. The northwestern property line of Mr. Moore's home is adjacent to the northeastern corner of the Property. JE 7; PE 98-B at RM.2
There is an approximate 100-foot-wide Bay County maintained canal or drainage ditch (canal) that forms the northern boundary of the Property, see Endnote 1 and PE 50 at 7, which runs in an east-to-west direction at the northern
portion of his home. This canal eventually leads to North Bay to the west.3 Goose Bayou is located south of the Property.
Mr. Moore taught respiratory care at Gulf Coast Community College for approximately 23 years and is retired.
His residence was affected by a hurricane which passed through the area in September 2004. He noticed water appearing half-way up his driveway, which is not on the canal. He is concerned with the placement of additional homes in this area in light of his experience with the water level after the recent storm event. (Generally, Mr. Moore stated that there is a two- foot difference between low and high tide in this area. T 133, 137.)
Mr. Moore, as well as the other Petitioners, made oral and written comments to the City Commission during the Plan Amendment adoption hearings. See City's Unilateral Pre-Hearing Stipulation at 5, paragraph E.4.; T 213.
The St. Andrews Bay Resource Management Association (RMA) was established in 1986 and is a citizen's organization devoted to the preservation of the quality of St. Andrews Bay and its surrounding ecosystems. T 194. (St. Andrews Bay is a larger body of water which includes North and West Bay and Goose Bayou. See generally JE 12, Map 1.)
The RMA has approximately 100 members. The RMA uses, but does not own, an office on the Panama City Marine Institute
campus located within the City. The RMA occasionally conducts seminars or conferences and offers several programs for citizens, e.g., sea turtle nest watch, a water sampling program (Baywatch), and a sea grass watch program. The RMA meets every month except during the summer. T 195-196.
The RMA opposes the Plan Amendment, in part, because of concerns with the effect of development on what Ms. Shaffer characterized as the "pine islands."
Linda Anne Yori owns and resides in a house at 908 Ashwood Circle, Panama City, Florida, which is "just off Kristanna" Drive and to the east. See PE 98-C at the blue X. She teaches middle school science at a local public school. She has observed the Property, and generally described the Property, and vacant property to the north, as "upland hammock with salt marsh." T 209. In general, Ms. Yori opposes the Plan Amendment because she "believe[d] the environmental impact would be too great."
Mary Rose Smith owns and resides in a house on Ashwood Circle, Panama City, Florida, two houses away from Ms. Yori's residence. Ms. Smith regularly jogs throughout the neighborhood. She believed that there are approximately 400 homes in Candlewick Acres and six vacant lots remaining. T 214-
215. As a result of recent hurricanes in the area, she observed flooding approximately half-a-mile upland along Kristanna Drive
from the west-end to the east (half a mile to the turn off to Ashwood). PE 98-D at the blue 1/2 designation and blue line. While she cannot say for certain where the water came from, she believed the water "came from the bay or the bayou." T 220.
The Bay County Audubon Society (BCAS) conducts membership and board meetings within the City limits and also owns a piece of property in the City. BCAS has approximately
400 members. Members live within the City. BCAS is concerned with the environment and with "the density of the proposed development" and "access to the pine islands." T 409-411.
The City is the local government unit responsible for approving the Plan Amendment at issue in this proceeding.
§ 163.3187(1)(c), Fla. Stat.
The Application, Review, and Adoption of the Plan Amendment
On or about May 11, 2004, James H. Slonina, P.E., the president of Panhandle Engineering, Inc., filed an application on behalf of Robert H. and Barbara B. Hansman, requesting the City to annex "approximately 9.9 acres including lots, paved roadways and bridged drives" and further requested a land use designation to allow proposed residential development." The Property, see Endnote 1, is designated on a Bay County parcel map. A flood zone map is also included, but lacks clarity. The Property is vacant. JE 13.
The purpose of the annexation and request for land use designation "is to accommodate the development of a 13+/- lot single-family residential waterfront development adjacent to North Shore Subdivisions." The application also stated:
To support the residential home sites, there are adequate adjacent public roadways and utilities. Due to the unique physical configuration of the property, traditional RLD lot standards may not [sic] applicable. While we would prefer to pursue an RLD-1 designation, the application is submitted contingent upon confirmation of an appropriate land use designation and an approval of the proposed project. If another course of action is available, which would allow for the development of 13+/- single-family residential lots on 9.9 acres, please advise.
JE 13. (It is represented throughout this record that the land use designation is requested for approximately 6.8 acres rather that approximately 9.9 acres. See, e.g., JE 7 at 1; JE 11 at
12-13.)
The application was reviewed, in part, by Mr.
Thomasson. JE 7. The staff report4 dated July 30, 2004, stated that the request is to amend the City's FLUM from Conservation (as previously designated by Bay County) to RLD with a Zoning District classification of RLD-1. (The staff report referred to several permitted uses under RLD-1. JE 7 at 2. The permitted uses for RLD-1 are those contained in the City's "Comprehensive Planning and Land Development Regulation Code (LDRC)" at section
4-6.1.2.a. JE 4 at IV:8-9. However, the propriety of the RLD-1 Zoning District classification for the Property is not at issue in this proceeding. T 266.)
The staff report also stated that the Property "is currently zoned conservation, abuts property to the North that is designated conservation Land Use category in the County and is just North of an existing Special Conservation Treatment Zone," which is indicated on a map on page 1 of the staff report. JE 7 at 1.
The staff report stated that "[w]ater and sewer infrastructure and other urban services are available to this property." See T 286-287, 301-303, 307-308; JE 7 at 1.
Under the background section, it is stated that "[t]he property has been seen as environmentally significant and has been the object of an effort to purchase for perpetual protection by a local land trust organization. It is adjacent to an existing development to the East." Id.
The Plan provides that an RLD land use district "is intended to provide areas for the preservation of development of low-density neighborhoods consisting of single-family dwelling units on individual lots" with a density of "[n]o more than five dwelling units per acre." The allowed intensity is "[n]o more than 40% lot coverage as determined by dividing the impervious areas by the gross area of the site or lot." JE 3 at 1-2.
The staff report contained findings of fact with citations to the Plan, including the Future Land Use Element, the Coastal Management Element, and the Conservation Element. References to the LDRC are also provided. See also T 285-311, 315-317, 320-321; JE 7 at 2-3. Thereafter, specific findings are made:
Staff finds that this property, as a part of the St. Andrews estuary, serves as a breeding, nursery, feeding and refuge are for numerous marine creatures, birds and upland wildlife. The three pine and oak hammacks [sic] are a few of a rare estuarian resource. The marsh throughout the area serves as home for seagrass and other marine organisms that are integral with the biodiversity of the estuary. There also exists a [sic] archaeological sites [sic] consisting of an ancient Indian midden that has already been classified by the Director of the Florida State Division of Historical Resources as deservant [sic] of mitigation and potentially eligible for the National Historic Registry (see attached documentation). The site overall has a biotic community of nearly 90% of it [sic] total area.
Staff findings are that this proposed Land Use Amendment is inconsistent with the above listed mandates of the Comp Plan. Staff also finds that the proposed Land Use is inconsistent with the LDR Code, in that it is not in harmony with the Comp Plan (Subsection 2-5.5.6.e. above), as well as the requirements of the environmental protection standards of Section 5-5. This decision hinges on the whether the City intends to enforce it's [sic] environmental protection standards of the Comp Plan and
the LDR Code and if the site is seen as environmentally significant.
JE 7 at 4 (italics in original).
Ultimately, staff recommended approval only with the following conditions:
1.) that the fullness of the subject property be designated as a Conservation Special Treatment Zone [CSTZ][5] and that the pine and oak hammacks [sic](as referred to as "Pine Islands" in the Bay County Comp Plan) are prohibited from being developed; and
2.) that the area of the subject property that is beyond the mean high tide of the mainland portion, which specifically means the marshes/wetlands and the oak and pine hammacks [sic], shall be placed in a conservation easement and dedicated to either the City, or a third-party land trust or conservancy.
JE 7 at 4. (Mr. Hammons, the City Manager, disagreed with the staff report, in part, because there was no data to support several findings. T 119-124.)
On August 9, 2004, the Planning Board of Panama City met in regular session to consider the application. The request was to approve a small scale land use amendment to the FLUM of the Plan from Conservation (under the Bay County Comprehensive Plan) to RLD with a zoning classification of RLD-1 for the Property. JE 11 at 2. But see Finding of Fact 15.
Mr. Fred Webb and Dr. Frasier Bingham were present on behalf of the applicant. Mr. Webb advised that the Bingham's
and the Webb's owned the property which consisted of approximately 6.5 acres of uplands. But see Finding of Fact 29 regarding the ownership of the Property. In part, Mr. Webb stated that the grass beds would not be impacted and that there was no legitimate environmental complaint.
Dr. Bingham stated that he is an ecologist, specializing in shallow water ecology. JE 11 at 3. He said his family had purchased the upland property in 1948 and the submerged land in the 1960s. Beginning in 1991, Dr. Bingham stated he tried to get the government to purchase the property, but to no avail. He also recounted attempts to obtain permits from DEP and the United States Army Corps of Engineers (Corps). See, e.g., PE 60, 63-64.6 He believed that the bridge problem, identified by the Corps had been solved. JE 11 at 3 and 13. (There is no persuasive evidence in this record that the Corps has approved any permits for development of the Property.) Mr. Webb stated that all maintenance to the bridges and other utilities would be the responsibility of the association (for the developed Property) and not the City and that the City would only be responsible for police and fire. Id. at 4.
Mr. Thomasson addressed the Planning Board. JE 11 at
The staff report previously mentioned is incorporated in the minutes. Staff felt that the CSTZ designation would be the most appropriate designation due to the environmental issues and that
the RLD-1 designation would be the least intense land use available under the Plan. Board member Pritchard inquired whether the application was incomplete "as it doesn't address the environmental issues." Mr. Thomasson stated the applicant did not believe there would be any environmental impact, while staff believed the property to be environmentally significant. JE 11 at 8.
Dr. Bingham again addressed the Planning Board to refute the staff's findings of fact. Dr. Bingham said that "the wetlands would not be impacted, the grass beds would not be impacted, and the stormwater runoff already goes into the grass beds, which are, in his opinion, fine grass beds" and that "that
13 houses would not have any significant impact." He indicated that soils were not at issue and that the "property is sandy, not special." Id. at 9.
Mr. Webb indicated that "they had evaluated the environmental aspects and added the raised bridges, swales, etc." JE 11 at 9.
Numerous individuals spoke in opposition to the request. Apparently, by a show of hands "a large majority of those present were in opposition to the request." JE 11 at 12. It appears that two persons spoke in favor of the request. Id.
at 9-11.
Mr. Webb confirmed that the application requested approval of the land use designation and annexation for 6.8 acres. JE 11 at 12. He also advised that a limited liability corporation owned the 6.8 acres, while there are different owners of other parcels. Mr. Webb indicated that "only the uplands on the islands were being annexed," although "he was not sure the properties were 'islands' in legal terms." Id. at 13.
Mr. Webb indicated that he was willing to indemnify the City against any legal expenses arising from this request. Id.
The requested land use change was approved by a vote of three to two. Id. at 14.
On September 28, 2004, the City Commission considered Ordinance No. 1985 pertaining to the requested land use designation change and Ordinance No. 1995 pertaining to the annexation of the Property. These Ordinances were read by title only as a first reading. JE 10 at 293-294.
During this meeting, the minutes (JE 10) reflect that Mr. Webb stated that they would only be developing the upland islands and proposed to use bridges, which he says "the environmental regulatory community has considered to have almost no environmental impact. He said that the addition of thirteen single family residential homes to an area that has seven
hundred homes will not materially affect level of service." JE 10 at 289.
Several of the people who appeared before the Planning Board also appeared opposing the application for annexation and land use designation change. JE 10 at 290. Mr. Martin Jacobson, Planning and Zoning Manager for Bay County filed a formal letter of objection to the annexation. Id. Mr. Fred Beauchemin opposed the annexation and responded to eleven items which were discussed by Mr. Webb and Dr. Bingham during the Planning Board meeting, including representations of impacts to grass beds, wildlife resources, and soils. JE 10 at 290-292.
Mr. Webb continued to feel that there would not be any destruction of the marshes. Id. at 292.
Dr. Bingham again noted that he is a shallow water marine ecologist and felt that he was informed about the environmental situation on the Property. Id. at 293.
After brief discussion by some of the Commissioners, Ordinance Nos. 1985 and 1995 were approved by a vote of three to two. JE 10 at 293-294.
By a letter dated November 9, 2004, Daniel Shaw, A.I.C.P., memorialized the October 5, 2004, Bay County Commission's unanimous decision to contest the potential annexation of and land use change to the Property, referring to several provisions of the Bay County Comprehensive Plan. T 228;
PE 69. Mr. Shaw opined that "[c]learly, development proposed for the annexed Pine Islands violates the County's Comprehensive Plan." PE 69 at 2. He further stated:
What's more the proposed annexation also violates the City's Comprehensive Plan. City Policy 5-5.2, 5-5.3 related to preservation of Environmentally Significant Resources would prohibit the proposed development. The property is a part of the St. Andrews estuary, and serves as a breeding/refuge area for numerous marine creatures, birds and wildlife. The three pine and oak hammocks are a truly rare estuarine resource for Bay County and for the State of Florida. The marshlands contain valuable sea grass beds and are home to numerous marine creatures, which are
integral to the biodiversity of the estuary. Finally, the property contains valuable archeological sites, consisting of ancient Indian middens that are classified by the State Division of Historical resources, and potentially eligible for the National Historic Register. I would concur with staff's memorandum of August 9, 2004, which cites numerous other examples of where the development would violate the City's plan.
PE 69 at 2 (emphasis in original).
Mr. Shaw also stated that the Property is located in the coastal high hazard area, within a "V" zone for flood regulations.7 He stated that "[t]hese designations argue for prohibiting development for public safety and infrastructure investment purposes." Again, Mr. Shaw stated that Bay County opposed the potential annexation and subsequent land use reclassification. PE 69 at 3.
Mr. Shaw also testified during the final hearing and reaffirmed his prior position. T 232-245. Mr. Shaw stated that the Property, prior to annexation by the City, was designated Conservation under the Bay County Comprehensive Plan, which allows for limited residential use and the preservation of pine islands (an outright prohibition).8 He was not qualified, however, to make a determination whether any portion of the Property is a pine island. T 247. Mr. Shaw thinks that Bay County allows up to 15 units per acre in the coastal high hazard area. T 254.
On November 9, 2004, the City Commission met and considered a final reading of Ordinance Nos. 1985 and 1995.
Several people appeared opposing both ordinances including Mr. Moore, Ms. Smith, Ms. Yori, and others. JE 8 at 3-14; JE 9 at 3-5.
Mr. Webb again addressed the City Commission and stated, in part, that "nothing in the marsh would be touched." He also indicated that he would fully indemnify the City in the event of a lawsuit. JE 8 at 14-21; JE 9 at 5.
Dr. Bingham also addressed the Commission. JE 8 at
He stated that he has designed an environmentally friendly community of 13 home sites. He indicated that he had a Ph.D. in shallow water marine ecology and attended Florida State University and the University of Miami. He said that he was
thoroughly familiar with the Panama City area and had worked with a large list of groups as an ecologist. He reiterated that the homes sites will take up 6.8 acres and will be entirely uplands and no marshes or swamps. He said that he is trying to use one fifth of the property that he owns and "there are no wetlands involved in this particular operation that will be damaged." JE 8 at 23. He also indicated that there will be raised bridges constructed on the Property, and according to him, were suggested by the Corps. Id.
After brief comments by several Commissioners, the Commission approved the annexation and land use designation change by a vote of three to two. JE 8 at 26-27, 30-31.
Toward the end of the November 9, 2004, hearing, the City Attorney, Rowlett Bryant, advised that the minutes of the September 28, 2004, Commission meeting would be included with the minutes of the November 9, 2004, public hearing. In other words, the November 9, 2004, Commission meeting was the public hearing held on the application for the annexation and the land use designation change. JE 8 at 27-30. Mr. Bryant also noted that the Ordinance No. 1985, related to the land use designation, would be RLD-1 and that the prior reference to Special Treatment Conservation Zone in the title of Ordinance No. 1985, considered on September 28, 2004, was a recommendation of staff and was deleted from Ordinance No. 1985, which was
approved by the City Commission on November 9, 2004. JE 8 at 31-32.
Ordinance No. 1985, in fact, changed the land use designation of the Property (approximately 6.8 acres) "from Conservation (a Bay County Land Use designation) to Residential- Low Density-1 as described in Small Scale Amendment 04-S20."
JE 1 at 2. However, Petitioners and the City agree that "[t]he city assigned a future land use map designation to the parcel of Residential Low Density in Ordinance No. 1985." See T 11, lines 10-23; Petitioners' Prehearing Stipulation at 2, IV.2.
Data and Analysis
As more fully discussed in the Conclusions of Law, "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; the need for redevelopment, including the renewal of blighted areas and the elimination of non-conforming uses which are inconsistent with the character of the community; the capability of uses on lands adjacent to or closely approximate to military installations; and, in rural communities, the need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy." § 163.3177(6)(a), Fla. Stat.
Florida Administrative Code Rule 9J-5.006(2) provides for "land use analysis requirements" and requires, in part, that the future land use element "be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2) F.A.C." Subsection 9J-5.006(2)(b) requires "[a]n analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available: 1. Gross vacant or undeveloped land area, as indicated in paragraph (1)(b); 2. Soils; 3. Topography; 4. Natural resources; and 5. Historic resources."
Further, "all goals, objectives, policies, standards, finding and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support
documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a)(emphasis added). "Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The
data shall be the best available existing data, unless the local government desires original data or special studies." Fla.
Admin. Code R. 9J-5.005(2)(c).
Petitioners question whether the record contains relevant and appropriate data, which was existing and available on or before November 9, 2004, to support the Plan Amendment. Petitioners further question whether the analysis of that data is adequate.
The application, JE 13, requested approval of annexation of and a change in the land use designation for, as amended, approximately 6.8 acres. Aside from identifying the parcel in question, in relation to Goose Bayou and the subdivision to the east, the application does not contain adequate data and analysis to support the Plan Amendment.
Mr. Slonina, a professional engineer and expert in civil engineering, testified during the final hearing as to the due diligence he and his firm performed in support of filing the application with the City. T 424. Mr. Slonina has been on the Property many times. T 456.
As part of the due diligence, Mr. Slonina analyzed the area proposed for development on the Property, which are the upland areas, and, in part, stated that these areas are primarily free draining sands and have fairly high percolation rates. T 425, 453. He also characterized upland areas as
fairly clean sands and satisfactory for development in this area based on his experience. He also examined the upland and wetland soils to determine suitability for a "post and beam timbered bridge system" that would be pile supported over the wetlands bridging upland areas. He opined that the soils on the uplands were nothing unique and were suitable for low density residential and suitable to support the bridge system he described. T 428, 442, 458-459. See also P 50, Attachment A.
Regarding utilities which might be available to the Property, during the due diligence phase, he identified, from utility maps, the location of the closest water and sewer which could serve the Property, adjacent to the Property to the east. He also analyzed the ability of fire protection to be provided to the Property and concluded that it was feasible. T 428-432, 460-461. See also JE 7 at 1 regarding "utility and other urban services availability" and P 50 at 14-16 for a discussion of "utilities."
Mr. Slonina also opined that a stormwater system could reasonably be designed for the Property and that it was feasible to design a stormwater system that would capture stormwater runoff before it went into the bayou. T 432-435.
Mr. Slonina examined flood zone information and determined that the Property was "very typical" and that the flood zone information available would not preclude residential
development on the Property. T 434-435, 450. But see Endnote 7.
From a traffic concurrency standpoint, he examined traffic engineering data on trip generation for 13 single-family homes and determined that there was adequate capacity for that additional loading on "the only roadway that connects to the [P]roperty." His traffic impact analysis was limited "through the residential streets." T 435-436, 439-441.
Mark O. Friedemann, is the executive vice-president at the Phoenix Environmental Group, Inc., an environmental consulting firm. T 466.
Mr. Friedemann was retained on or about January 7, 2005, by the City's counsel for the purpose of "doing a basic assessment of the property and whether it was suitable for some type of development, residential in particular." T 474-475.
Prior to conducting a survey of the Property, aerial photographs, data from the Florida Natural Areas Inventory, and various maps were reviewed. Id.
Mr. Friedemann and an assistant conducted a field survey of the Property on January 12, 2005. They collected basic water quality data, observed wildlife, conducted several soil observations pits, looked for scat, and examined the vegetative community on the Property. T 476.
For the purpose of the survey, the Property was divided into areas 1 through 4, which are labeled on CE 5, Figure 2. T 478. These upland areas were the major focus of the assessment along with the interior (wetland/marsh) areas. T 478, 565. CE 5 at 2, Figure 2.
Mr. Friedemann and his assistant arrived on the Property at approximately 9:00 am on January 12, 2005, during low tide. They left the Property as the tide was starting to return. T 517, 532, 548.
Area one is a rectangular portion of the Property, which runs north to south and forms most of the eastern boundary of the Property and is adjacent to Candlewick Acres. Area two is another upland area which is in the northwest portion of the Property and west of area one. Area three is in the southwest portion of the Property and southwest of area two. Area four is a small upland portion, which is almost due south of area one in the southeastern portion of the Property. CE 5 at 2, Figure 2; see also Endnote 6.
Mr. Friedemann accessed area two from area one by walking along a path/spoil pile, which runs east to west and forms part of the northern boundary of the Property (the approximately 100 foot canal is north of and adjacent to the path/spoil pile). He walked to area three by stepping across a small rivulet of no more than a foot in width. He walked to
area four from area three, stepping over another small tidal- influenced rivulet that passed between areas three and four. He approached area one from area four walking across "a rather high area." Mr. Friedemann "did not get the impression that area two was surrounded" by wetlands, salt marsh, or tidal mud flats.
T 479-481, 500, 517, 556-557. He stated that area three would be surrounded, but was unsure about area four. T 556-559. Some of the areas photographed would be potentially inundated during high tide. T 521-525.
Mr. Friedemann's report also contained, in part: water quality data taken on January 12, 2005; and a list of species seen on the same date; a recent undated aerial of the Property and surrounding area, downloaded from the DEP website, which was also magnified; and several aerials (dated 1953, 1962, 1967, 1974, 1978, and 1986) of the Property including the surrounding areas. Mr. Friedemann opined, based on his review of aerials, that there may have been a timber operation ongoing on the Property in the past although he would not hazard a guess.
T 540. The report also included several photographs taken of the four areas, during the site visit on January 12, 2005. CE 5 at x-xxii.
Although he did not "review any set of plans," or have any opinion regarding any specific development proposal,
Mr. Friedemann opined that based on his observations in the
field, "there is a viable project that could be built on this parcel."9 T 482, 501-502, 511, 520.
Mr. Friedemann provided an analysis of the Property by and through his testimony regarding photographs taken of the Property during his site visit. From a biological or ecological perspective, he did not observe anything on the Property which would preclude residential development. He further opined that what he observed was not unique in the panhandle of Florida.
T 501-502.
Mr. Friedemann did not conduct a wetland delineation of the Property. T 556. However, the record contains an infrared Conceptual Site Plan dated October 22, 2002, indicating vacant land to the north of the Property, and residential areas to the east of the Property and east of the vacant parcels to the north. This particular site plan provided for the approximate wetland boundaries of the Property identified as south parcel (4). PE 98-D and PE 50 at Exhibit 1.
Mr. Friedemann indicated that he had not observed the Property during a hurricane, during periods of high wind, or during periods of a combination of high wind and high tide. He agreed that the tides in the United States can be lower during the winter than they are during the spring and that the highest tides may be experienced during the spring called neap tides.
T 532-533.
Mr. Friedemann was also referred to a December 30, 2004, document apparently prepared by Panhandle Engineering, Inc., sheet number 2 of 4, CE 16, which delineated 13 lots. T
533. See Endnote 6. (City Exhibit 16 was admitted into evidence as an authentic document; however, there was no testimony regarding the preparation of this document. T 535-537.) Comparing sheet 2 of 4 with Figure two of CE 5, area two is depicted as being surrounded by rush marsh and connected to area one and area three by drawn-in bridges. Compare PE 50, Attachment E, Sheet 1 of 2, dated July 31, 1998, depicting the Property with 13 lots configured, interspersed with a "conservation area" designation and Attachment A, Figure 4., Project Base Map, depicting upland areas on the Property, interspersed with a "marsh" designation with PE 98-D south parcel (4) and "approximate wetland boundary. See also Endnote
Mr. Friedemann stated that the indication of rush marsh on sheet number 2 of 4 did not comport with his observations of the Property during his site visit. He was unaware of this drawing. T 534-538.
Gail Easley, A.I.C.P., an expert in urban and regional planning, opined that the Plan Amendment was consistent with various provisions of the City's Plan, the State Comprehensive Plan, and the West Florida Regional Strategic Policy Plan. She also opined the Plan Amendment was supported by data and
analysis regarding the suitability of the Property for the RLD land use designation. In support, Ms. Easley stated in part:
Understanding that the amendment is not really permitting the use, but understanding that the amendment establishes the uses that are allowed as I testified earlier, the suitability data that is available in addition to the data and analysis here in the Comprehensive Plan includes the information from Panhandle Engineering about, more specifically about the availability of facilities and services and the suitability of soils for use of residential low density, as well as the analysis contained in Mr. Friedemann's report regarding environmental issues and the suitability of this site for residential low density. So I found plenty of evaluation of suitability.
T 586. See also T 610-611.
Ms. Easley also opined that the Plan Amendment does not threaten coastal and natural resources in violation of Florida Administrative Code Rules 9J-5.006, 9J-5.012, and 9J- 5.013, and Sections 163.3177 and 163.3178, Florida Statutes, because she considered the data and analysis in the Plan, "as well as the suitability and capability [sic] analysis that were submitted by Panhandle Engineering and Mr. Friedemann demonstrated that there was not a violation of these provisions." T 617. Ms. Easley also stated that there was adequate data to support a need for residential (RLD) development on the Property. See, e.g., T 584-585, 621-622,
629-630, 632-634. See also JE 3 at Future Land Use Data, 1-1 -
1-10.
During cross-examination, Ms. Easley was asked to identify the particular Panhandle Engineering report which she reviewed to support her opinion. The report is not in evidence. However, Ms. Easley stated: "It was a report that they prepared that addressed issues of suitability of the site with regard to the availability of water, the availability of sewer, the capacity for water and sewer, soil conditions on the site, and traffic situations on the site. I'm sorry, I do not recall the date of that particular suitability analysis, but it was prepared by Panhandle Engineering, and I reviewed it as a part of my analysis." T 626.
Ms. Easley was also asked to provide the source of her data and analysis about environmental conditions on the site and she replied: "Two places, there is information in the City's data and analysis with regard to the vacant land analysis, as well as general environmental conditions in or around the City, I reviewed that data and analysis that I mentioned earlier. I also saw information specific to this parcel from Mr. Friedemann's report." T 627. Ms. Easley indicated that there was no specific data and analysis contained in the City's Plan about the Property, although the Plan referenced areas adjacent to the City. T 628.
Ms. Easley reiterated that natural resources are considered during the plan amendment process. It also occurs during permitting. T 642. She again stated: "The suitability analysis was contained in two different reports. As I testified earlier, Mr. Slonina's report from Panhandle Engineering addressed soils and soil suitability. And Mr. Friedemann's report looked at other kinds of environmental issues. I reviewed both of those reports and determined that suitability analysis had been preformed to support the plan amendment."
T 643. According to Ms. Easley, if there were environmental reasons creating an inconsistency with Rule 9J-5, then such reasons could serve as a basis for denial. T 643. (Ms. Easley also opined that a land use change to the FLUM "is an assignment of a land use category and the associated density and intensity, it is not a development activity." See T 587, 651.)
Mark Llewellyn, P.E., is the president of Genesis Group. In October 2002, Genesis Group completed a planning and engineering analysis (Genesis Report)10 for Chandler and Associates, who, in turn, had a contract with the DEP to prepare an appraisal report for the Goose Bayou Marsh Property.11
The Goose Bayou Marsh Property included four parcels, including the south parcel (4), which is the Property in question, two north parcels (2 and 3), and the middle parcel (1), which is north and northeast of and adjacent (the west one-
third) to the Property. All the parcels are vacant. See PE 98- D, which also appears at PE 50, Exhibit 1.
Mr. Llewellyn identified three peninsular islands on the Property (south parcel 4)(PE 98-D at the blue X's), which roughly correspond with areas one and two in Mr. Friedemann's report at CE 5 at 2, Figure 2. T 160-161. See also Endnote 6. The two eastern peninsular islands (area one) are connected to the upland to the east, Candlewick Acres. The third peninsular island, located in the northwest corner of the Property, can be accessed, according to Mr. Llewellyn, by a berm or other geographical feature to the north of the Property and south of the drainage canal. Id. See also T 397. There is one larger upland island and a smaller upland island toward the southwest and southern portions of the Property, which appear to be surrounded by wetlands, waters of the state, salt marsh, or tidal mud flats. T 160-164. Each peninsular island and upland island is less than 20 acres. Mr. Llewellyn's analysis is consistent with the approximate wetland boundaries identified in the Conceptual Site Plan, PE 98-D.
Mr. Llewellyn opined that the Property could be developed as a single-family development without having an impact on the Property if it is designed and maintained properly. T 157, 172. See also Endnote 6.
The Genesis Report provided an analysis of the four parcels. Apparently the south parcel (4), the Property, contained approximately 16.2 acres as follows: wetlands 9.8+/- acres; upland islands 3.5+/- acres; peninsula uplands 2.9+/- acres; or 6.4+/- acres of total uplands. T 163; PE 50 at 12.
Parcels 1-4 are analyzed in light of several factors, including but not limited, to the Bay County Future Land Use and Comprehensive Plan. The following is an analysis of the Bay County Future Land Use and Comprehensive Plan as applied to the north parcels (2 and 3):
The Bay County Comprehensive Management Plan identifies the North Parcel's Future Land Use Designation as Conservation. The purpose of this land use is to identify public and private lands held for conservation of natural features. Allowable uses for this designation are natural resource protection, flood control, wildlife habitat protection, passive of recreation, silviculture and residential densities up to 2DU/acre. Commercial development is prohibited for properties with this land use designation.
Additionally, the upland islands located on these parcels fit the definition for "Pine Islands" as defined in the Bay County Comprehensive Plan. A Pine Island is defined as a small upland area generally 20 acres or less, usually characterized by typical pine flatwood vegetation, which are surrounded by waters of the State, wetlands, salt marsh, or tidal mud flats. The Bay County Comprehensive Plan prohibits development on any "Pine Island". This means that it will be extremely difficult to
develop the upland areas located on this parcel.
PE 50 at 2. See also PE 50 at 2 (II.B.) and 13 (IV.B.) regarding the Panama City Future Land Use. (The Genesis Report was prepared approximately two years prior to the City's annexation of the Property. The City did not annex the vacant land to the north (parcels 1-3), which is part of the subject of the Genesis Report.)
Regarding the analysis of parcels 1, and 4, the Property, and referring to the Bay County Future Land Use and Comprehensive Plan, it is noted that "[t]he same issues apply to this parcel." PE 50 at 7 and 13.
The Genesis Report discussed wetlands on the Property:
The wetlands within the property consist of estuarine salt marshes, which are connected to Goose Bayou and West Bay. According to an environmental assessment prepared by Biological Research Associates (BRA) the marshes are tidally influenced and dominated by black rush. Other species include seaside goldenrod, seashore dropseed grass, sea purslane, glasswort, salt grass, marsh hay cord grass, sea lavender, Chinese tallow, saw grass, cork wood, and saltbrush.
Additionally, the salt marsh is habitat for two listed bird species; the snowy egret and the little blue heron (see Attachment A).
As previously stated, a wetland delineation has been completed for this parcel and accepted by FDEP and ACOE.
PE 50 at 13.
The Genesis Report also provided a brief discussion of flood plain and cultural resource considerations, and also provided an analysis of site planning and engineering, including access, utilities, owner site plan/lot lay out, and probable development costs. PE 50 at 13-15.
Regarding south parcel 4, the Property, the Genesis Report concluded, in part, that "[t]his parcel has limited development potential." A cost estimate is provided. It is also concluded that water and sewer could be provided without incurring significant increases in development costs. "Development of the upland islands would require bridges, which significantly increases the development cost. There is no guarantee that the development within the wetlands would be permitted at this time." PE 50 at 16.
The Genesis Report also included a report prepared by Biological Research Associates, which appears as Attachment A to PE 50.
Mark Andrew Barth, vice president/senior ecologist for Biological Research Associates, was one of the two signatories to a section of the Genesis Report and also testified during the final hearing. T 175; PE 50, Attachment A. He reiterated that they prepared a preliminary environmental assessment for a proposed acquisition by a State agency. T 176, 180. (While unclear, it appears that his study area included the approximate
western one-third of the Property, see, e.g., T 189; PE 50, Attachment A, Figures 1, 3-4, although other portions of the Property were studied. See, e.g., Finding of Fact 93.)
Referring to PE 98-C and the Property (outlined in black) and the vacant land to the north outlined in red, Mr. Barth testified that they are "mainly comprised of salt marsh and scattered pine dominated islands." According to Mr. Barth, the term "pine islands," "describes isolated upland patches within the salt marsh." T 177.
The salt marshes consist of vegetation that extends beyond the water level usually in very shallow water. T 178. The Property is part of an estuary system, Goose Bayou, for example. Id. See also T 381; JE 12 at IV-14-16 and Map 1. The salt marsh is inundated by saline or marine water as opposed to fresh water. T 178. One of the most significant features of an estuary system "is providing nursery grounds and habitat for marine and estuarine fish and wildlife." T 179. Mr. Barth considered the Property, south parcel 4, PE 98-D, to be environmentally sensitive in light of the combination of estuarine and upland areas which are undisturbed. T 185-186.
Mr. Barth did not have enough information to assess specific impacts to the surrounding salt marsh and water in light of a proposed development on the Property. He felt it depended on the type of development. T 182.
"Middens" have been found on the south side of the Property, in and around area 3 (CE 5 at 2, Figure 2). See, e.g., T 558-559; PE 50, Genesis Report at 13 and Attachment A at 6-7 and Attachment E, Figure 4, Project Base Map and Figure 5, PBY139 Base Map.
Ultimate Findings of Fact Regarding Adequacy of Data and Analysis
Ultimately, whether the Plan Amendment is based upon relevant and appropriate data and analysis is a close question. This is particularly true here where critical portions of Mr. Friedemann's analysis are based on information, e.g., Mr. Friedemann's photographs, collection of water quality samples, and observations of the Property (species seen and terrain), which post-dated the City's adoption of the Plan Amendment on November 9, 2004. As a result, his analysis of this information has been disregarded, notwithstanding the lack of an objection to the admissibility of his report, CE 5. See Conclusions of Law 110-114. (Mr. Friedemann also provided several aerials of the Property and surrounding area which pre-date the date of adoption of the Plan Amendment and have been considered along with his analysis of this data.) Also, to the extent that Ms. Easley relied on Mr. Friedemann's report (CE 5) and the post- adoption information collected by Mr. Friedemann and his
analysis of that information, her opinions have also been disregarded.
Nevertheless, Petitioners have the burden to prove, by a preponderance of the evidence that the Plan Amendment is not based upon relevant and appropriate data and analysis, which Petitioners have not done. Accordingly, based on a review of the entire record in this proceeding, it is ultimately concluded that the Plan Amendment is based on relevant and appropriate data and analysis, except as otherwise stated herein. See
§ 163.3177(6)(a), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(2), 9J-5.006(2), and 9J-5.012-.013.
Consistency with the City's Plan, the West Florida Strategic Regional Policy Plan, the State Comprehensive Plan, and the City's Comprehensive Planning and Land Development Regulation Code
Petitioners contend that the Plan Amendment is inconsistent with several provisions of the City's Plan: Future Land Use Element Policy 1.1.1.10; Coastal Management Element Goal 1, Objective 5.1, and Policies 5.1.1 and 5.1.3.3, and Goal 3; and Conservation Element Goal 1, Policies 6.6.2, 6.6.2.3, and 6.6.2.4.
Petitioners contend that the Plan Amendment is inconsistent with several provisions of the LDRC: subsections 2- 5.5.6, 5-5.1, 5-5.2, 5-5.3, and 5-5.6.3.e.
Petitioners also contend that the Plan Amendment is inconsistent with Section 187.201, Florida Statutes, and the West Florida Strategic Regional Policy Plan.
The Plan Amendment changes the land use designation on the Property to RLD. The Plan Amendment is not a development order. See Strand v. Escambia County, Case No. 03-2980GM, 2003 WL 23012209, at *4 (DOAH Dec. 23, 2003; DCA Jan. 28, 2004), aff'd, 894 So. 2d 250 (Fla. 1st DCA 2005). It does not authorize any development to occur on the Property. Further, a special treatment zone, as used in the City's Plan, is not a FLUM land use district.
Based on the plain and ordinary meaning of the various Plan provisions at issue, the Plan Amendment does not alter or interfere with the City's ability to maintain the quality of coastal resources; restrict the City's ability to maintain regulatory or management techniques intended to protect coastal wetlands, water quality, wildlife habitat, and living marine resources, for example, or prohibit the construction of docks, piers, wharves, or similar structures; interfere with the City's ability to provide for or have available adequate areas for public waterfront access or to provide the circumstances necessary for the conservation, protection, and use of natural resources; or interfere with the City's ability to enforce guidelines in its LDRCs related to, for example, the protection
and conservation of the natural functions of existing soils, wetlands, marine resources, estuarine shoreline, stormwater management, wildlife habitat, or flood zones. Petitioners did not prove that the Plan Amendment is inconsistent with cited portions of the City's Plan, the State Comprehensive Plan, and the West Florida Strategic Regional Policy Plan.
Further, the Plan Amendment need not be consistent with the City's LDRCs because it is not the subject of "in compliance" review.12
CONCLUSIONS OF LAW
Jurisdiction
The Division has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 163.3187(3)(a), Fla. Stat.
Burden of Proof and Standard of Review
Sections 120.569 and 120.57(1), Florida Statutes, provide for de novo proceedings in which a ruling on the petition is based on the record developed at a final hearing. See Denig v. Town of Pomona Park, Case No. 01-4845GM, 2001 WL 1592220 (DOAH June 18, 2002; Admin. Comm. Oct. 23, 2002).
The burden of proof in administrative proceedings is generally on the party asserting the affirmative of the issue in the proceeding. Young v. Department of Community Affairs, 625 So. 2d 831, 834 (Fla. 1993).
Section 163.3187(3)(a), Florida Statutes, imposes the burden of proof on the party challenging a small scale development amendment. The City's determination that the Plan Amendment "is in compliance is presumed to be correct."
§ 163.3187(3)(a), Fla. Stat.
"The local government's determination shall be sustained unless it is shown by a preponderance of evidence that the amendment is not in compliance with this act."
§ 163.3187(3)(a), Fla. Stat.
"In compliance" means consistent with the requirements of Sections 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, Florida Statutes, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with Florida Administrative Code Chapter 9J-5.
§ 163.3184(1)(b), Fla. Stat. For the reasons stated herein, Petitioners did not prove that the Plan Amendment is not "in compliance."
Standing
In order to have standing to bring an action before the Division pursuant to Section 163.3187(3), Florida Statutes, a petitioner must be an "affected person" as defined by Section 163.3184(1)(a), Florida Statutes, which 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. . . . Each person, other than an adjoining local government, in order to qualify 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.
§ 163.3184(1)(a), Fla. Stat.
Petitioners are affected persons and have standing in this proceeding.
Data and Analysis
Petitioners contend that the Plan Amendment is not based upon relevant and appropriate data and analysis.
Any amendment to a comprehensive plan must be based upon appropriate data. Although such data need not be original data, local governments are permitted to utilize original data as long as appropriate methodologies are used for data collection. § 163.3177(8) and (10)(e), Fla. Stat.
Florida Administrative Code Rule 9J-5.005(2) requires that, in order for a plan provision to be "based" upon appropriate "data," the local government must "react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." The data must also be the "best available existing data" "collected and
applied in a professionally acceptable manner." Fla. Admin. Code R. 9J-5.005(2)(a)-(c).
However, the data and analysis that may support a plan amendment are not limited to those identified or actually relied upon by a local government. All data available to a local government in existence at the time of the adoption of the plan amendment may be relied upon to support an amendment in a de novo proceeding. Zemel v. Lee County and Department of Community Affairs, 15 F.A.L.R. 2735, 2737 (DCA June 22, 1993), aff'd, 642 So. 2d 1367 (Fla. 1st DCA 1994). See also Sierra
Club v. St. Johns County and Department of Community Affairs, Case Nos. 01-1851GM and 01-1852GM, 2002 WL 1592234 (DOAH May 20,
2002; DCA July 30, 2002) ("The ALJ need not determine whether the [local government] or the Department were aware of the data, or performed the analysis, at any prior point in time." (citation omitted)), aff'd, 857 So. 2d 897 (Fla. 5th DCA 2003). Analysis supporting a plan amendment, however, need not be in existence at the time of the adoption of a plan amendment. See
Zemel, supra. Data existing at the time of the adoption of a plan amendment may be subject to new or even first-time analysis at the time of an administrative hearing challenging a plan amendment. Id.
The data and analysis that support the Plan Amendment is discussed in the Findings of Fact, except where disregarded.
As noted, this is a close question. Nevertheless, Petitioners did not prove that the Plan Amendment is not based upon relevant and appropriate data and analysis.
Consistency with the City's Plan, the West Florida Strategic Regional Policy Plan, and the State Comprehensive Plan
Petitioners contend that the Plan Amendment is not consistent with certain elements of the Plan. To be "internally consistent," comprehensive plan elements must not conflict. If the objectives do not conflict, then they are coordinated, related, and consistent. See generally Schember v. Department of Community Affairs and City of Bradenton, Case No. 00-2066GM (DCA Nov. 1, 2001).
A proposed small scale amendment reviewed under Section 163.3187(1)(c), Florida Statutes, by a local government "does not involve a text change to the goals, policies, and objectives of the local government's comprehensive plan, but only proposes a land use change to the future land use map for a site-specific small scale development activity."
§ 163.3187(1)(c)1.d., Fla. Stat.
The Plan, including the FLUM and plan amendments, is a legislative decision. Coastal Development of North Florida, Inc. v. City of Jacksonville, 788 So. 2d 204, 208-209 (Fla. 2001). The Plan should be read as a whole in determining the City's intent with respect to a discrete portion. Id.
The rules of statutory construction provide insight when construing various goals, objectives, and policies of the Plan. The plain meaning of the statute is considered the foremost rule. Acosta v. Richter, 671 So. 2d 149, 153 (Fla. 1996). Essentially, this rule requires "straightforward consideration of each relevant sentence" because a "statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts." Id. at 153-
(citations omitted). Also, "statutory phrases are not to be read in isolation, but rather within the context of the entire section." Id. at 154. (citations omitted). "When a statute is clear, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." State v. Burris, 875 So. 2d 408, 410 (Fla. 2004) (citation omitted). "Instead, the statute's plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent." Id.
LDRs have been defined by statute as follows:
"Land development regulations" means ordinances enacted by governing bodies for the regulation of any aspect of development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulations or any other regulations controlling the development of land, except that this definition shall not apply in s. 163.3213.
§ 163.3164(23), Fla. Stat. The relevance of LDRs was explained in Robbins v. Department of Community Affairs and the City of
Miami Beach, Case No. 97-0754GM, 1997 WL 1432207, at *7 (DCA Dec. 9, 1997):
[L]and development regulations are not relevant to a plan or plan amendment compliance determination. Land development regulations must be consistent with the adopted comprehensive plan, not the other way around.
§163.3194(1)(b), (2) and (3), and §163.3213, Fla.
Stat. The comprehensive plan is implemented by appropriate land development regulations. §163.3201, Fla. Stat.
Further, "consistency with land development regulations is not a compliance criterion," because it is not required by the definition of "in compliance" under Subsection 163.3184(1)(b). See Brevard County v. Department of Community Affairs and City of Palm Bay, Case Nos. 00-1956GM and 02-0391GM, 2002 WL 31846455 (DOAH Dec. 16, 2002; DCA Feb. 25, 2003).
Petitioners did not prove that the Plan Amendment is inconsistent with the cited provision of the City's Plan, the State Comprehensive Plan, or the West Florida Strategic Regional Policy Plan or is otherwise incompatible with the surrounding
area.
CONCLUSION
Based upon the foregoing, Petitioners did not prove by a preponderance of the evidence that the Plan Amendment is not "in compliance."
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order concluding that the Plan Amendment, adopted by the City of Panama City in Ordinance No. 1985, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
DONE AND ENTERED this 6th day of October, 2005, in Tallahassee, Leon County, Florida.
S
CHARLES A. STAMPELOS
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 6th day of October, 2005.
ENDNOTES
1/ The term "Property" is used throughout this Recommended Order and includes the entire parcel which is west of a residential, single-family subdivision known as Candlewick Acres and south of the 100 foot wide drainage canal. The approximately 6.8 acres is part of this Property. See JE 13.
2/ On February 12, 2005, Dr. Berry took three aerial photographs of the Property and surrounding area. T 24, 30. Petitioners' Exhibits 98-A-C are annotated and provide a good demonstrative reference for the reader. However, the photographs are not "data" as that term is used in Rule 9J-5 because they were taken
after November 9, 2004, and were not existing and available to the City at that time.
3/ North Bay is also referred to in the record as West Bay. See, e.g., T 21, 194 (North Bay); PE 50 at 1, 7 (West Bay) and Attachment A at 1 (North Bay), Figure 4 (North Bay); CE 5 at Figure 1 (West Bay); PE 28-30 (North Bay); PE 98-D (West Bay). Kristanna Drive is part of Candlewick Acres. See PE 98-C and D.
4/ Mr. Thomasson stated that the staff report was based on information in the staff files, including reports from State government regarding environmental and archaeological issues. T 267-268, 270. He did not discuss his environmental concerns with the applicant "in depth." T 268.
5/ Mr. Thomasson stated that the CSTZ is not a land use district identified in the Plan; it is a depiction or designation overlay on the FLUM. T 282-285.
6/ The record contains references to a Corps decision to deny a permit to Dr. Bingham in and around 1998, to fill approximately
0.34 acres of tidal wetlands on the Property for the purpose of constructing several road crossings (four causeways and not bridges, T 400) for access to "small upland islands" on the Property.
By letter dated September 10, 1998, the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration, recommended that the Corps deny the permit.
PE 60.
It also appears that development was proposed for 13 lots. A site plan is not attached to the September 10, 1998, letter. However, the record contains a July 31, 1998, document from Panhandle Engineering, Inc., sheet 1 of 2, which faintly delineates 13 lots on the Property. PE 50, Attachment E. See also CE 16, sheet 2 of 4 dated December 30, 2004, which similarly denoted, with more clarity, 13 lots and appears to be an updated plan showing potential bridges spanning the upland parcels.
Lots 1-5 appear to correspond to the rectangular portion of the Property adjacent to Candlewick Acres, see CE 5 at 2, Figure
2 (areas 1 and 2) and PE 98-D at the two blue X notations on the same rectangular areas. Lots 12 and 13 appear to correspond with area 2 on Figure 2 of CE 5 and the blue X notation on the western parcel on PE 98-D. See also T 165, 444. Lots 7-11,
appear to correspond to area 3 on Figure 2 of CE 5 and the southwestern portion of the Property designated on PE 98-D, which is encircled with a green wetland boundary. Lot 6 appears to correspond with area 4 on CE 5, Figure 2, on the southern portion of the Property.
The fill issue was examined by Mark Thompson and others with the NMFS. T 384, 399; PE 60. (Mr. Thompson was last on the Property in 1997-1998.) Mr. Thompson and others wrote the September 10, 1998, letter (for the assistant regional administrator) in response to a Corps public notice regarding the request. The letter analyzes and described the Property, including the submerged lands. There was concern "that the proposed project will adversely affect fishery resources." Several conclusions area expressed. PE 60. One suggestion was made that development be limited "to seven lots (lots 1, 2, 3, 4, 5, 12, and 13)." Id. at 3. See also T 399-400.
The NMFS recommended the Corps deny the permit "[b]ased upon the direct and secondary impacts to tidal wetlands, the availability of accessible on-site uplands, and the potential to establish a precedent that may lead to significant cumulative impacts." PE 60 at 3. No recommendation was made regarding the use of bridges. See T 157-158.
There is also evidence regarding DEPs review of a permit application. See T 356-378; PE 63-64.
7/ Mr. Slonina believed that the predominant areas of the Property are in the "AE8" flood zone, which means eight feet above NGDV or above sea level. T 435. He believed a small unidentified piece was in a "V" zone, "but the predominace of it, if [he recalled], was in an "A zone static play." T 450. As it related to his area of responsibility, "a V zone requires scour resistant foundations, and it's wind driven, wave action is the predominant source of the worst case of a V zone. And oftentimes, the slabs still have to have pile supports. There needs to be a scour resistant foundation where in an A zone, the code doesn't necessarily require a scour resistant because an A zone is thought of as static flooding." T 463-464. (Ms. Easley stated that the Property is located in the A zone. T 635.)
According to the Genesis Report, see Finding of Fact 78, the Property is "zoned "AE" and "VE" in the FIRM of Bay County Community-Panel number 12005C0331G revised September 18, 2002. (The FIRM is not included with the Genesis Report.) This zone
is designated as being within the 100-year flood zone. The "VE" zone is described as having costal [sic] floods with velocity hazard (wave action). The base flood elevation is 9 feet for the majority of the parcel. The FIRM map for this property is provided in Attachment B," which is not in the record. PE 50 at
13. See also JE 3 at Coastal Management Data, 5-3, June 2000, for a brief discussion of "A Zone" along St. Andrews Bay and Plate 3-5 for the Bay County Evacuation Zones, which the evidence indicates that the Property is within the Category 1 Zone (green circle and arrow); PE 28-30; T 331. The location of the Property within a Category 1 or 2 Zone does not mean that no development can occur on the Property. T 335-337.
8/ Policy 6.21.1 of the Bay County Comprehensive Plan states: "'Pine Islands' are small upland areas generally twenty (20) acres in size or less (usually characterized by typical pine flat wood vegetation) which are surrounded by waters of the State, wetlands, salt marsh, or tidal mud flats. Development, including land clearing, on any 'Pine Island' is prohibited." PE 69 at 3.
9/ Regarding suitability for development, the report stated: "Based on the material reviewed prior to the field inspection, observations made at the site and past permitting experience, the areas evaluated appear suitable for some form of residential development. The areas evaluated do not represent unique habitat. In fact, the habitat is typical of degraded conditions found in fire suppressed communities, particularly, pine flatwoods that are common throughout North Florida." CE 5 at 5.
10/ Petitioners' Exhibit 50 is the planning and engineering analysis prepared for Goose Bayou Marsh. However, figure two from Attachment A, Attachment B the FEMA map, and Attachment D, a wetland delineation survey, are omitted from this Exhibit.
T 147, 150. The red handwriting has been disregarded.
11/ The role of Genesis Group was to investigate the Goose Bayou Marsh Property and to establish the development potential of this property. T 149. Biological Research Associates also prepared a report which was included with the Genesis Report.
PE 50, Attachment A.
12/ Notwithstanding, except as noted on page 1 of JE 1 (Ordinance No. 1985) the "planning board" did not make findings pursuant to Section 2.2.5.6.a.-e., LDRC. Petitioners did not
prove that the Plan Amendment is incompatible with the surrounding area.
COPIES FURNISHED:
Thaddeus Cohen, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
David J. Russ, Esquire
601 South Main Street, Suite 9J-5 Gainesville, Florida 32601-6719
David A. Theriaque, Esquire Theriaque Vorbeck & Spain 1114 East Park Avenue
Tallahassee, Florida 32301-2651
Tiffany A. Brown, Esquire Bryant and Higby
Post Office Box 860
Panama City, Florida 32402-0860
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 28, 2005 | Agency Final Order | |
| Oct. 06, 2005 | Recommended Order | Petitioners did not prove by a preponderance of the evidence that the small scale development plan amendment was not in compliance as that term is defined in Section 163.3184, Florida Statutes. |
