STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AMELIA TREE CONSERVANCY, INC.
vs.
Petitioner,
Case No. 19-2515GM
CITY OF FERNANDINA BEACH, FLORIDA,
Respondent,
and
AMELIA BLUFF, LLC,
Intervenor.
/ SIERRA CLUB,
vs.
Petitioner,
Case No. 19-2544GM
CITY OF FERNANDINA BEACH, FLORIDA,
Respondent,
and
AMELIA BLUFF, LLC,
Intervenor.
/
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on July 15 through 17, 2019, in Fernandina Beach, Florida,
before E. Gary Early, a designated administrative law judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Robert C. Apgar, Esquire
Law Office of Robert Apgar
510 Frank Shaw Road Tallahassee, Florida 32312
Victoria Wilson, Esquire Victoria Wilson Esquire LLC 1543 Piper Dunes Place
Fernandina Beach, Florida 32034
Alfred C. Laub, Qualified Representative
19 Painted Bunting
Fernandina Beach, Florida 32034
For Respondent: Alison H. Sausaman, Esquire
Carr Allison
The Greenleaf and Crosby Building
208 North Laura Street Jacksonville, Florida 32202-3500
William B. Graham, Esquire Carr Allison
305 South Gadsden Street Tallahassee, Florida 32301
Tammi E. Bach, Esquire City of Fernandina Beach
204 Ash Street
Fernandina Beach, Florida 32034
For Intervenor: T. R. Hainline, Esquire
Emily Gordinier Pierce, Esquire Rogers Towers, P.A.
Suite 1500
1301 Riverplace Boulevard
Jacksonville, Florida 32207
Courtney P. Gaver, Esquire Rogers Towers, P.A.
Suite 200
100 Whetstone Place
St. Augustine, Florida 32086 STATEMENT OF THE ISSUES
Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
PRELIMINARY STATEMENT
On April 16, 2019, the City adopted the FLUM Amendment, which changed the FLUM category of 6.4 acres of property (the “Property”) from Conservation to Low-Density Residential (“LDR”). The Property is proposed to be part of a 30-lot subdivision known as Amelia Bluff (the “proposed subdivision”).
On May 14, 2019, Petitioners Amelia Tree Conservancy, Inc. (“ATC”), and Conserve Amelia Now, Inc., timely filed a Petition for Formal Administrative Hearing with the Division of Administrative Hearings (“Division”) challenging whether the FLUM Amendment qualified as a small scale map amendment; and whether the FLUM Amendment is internally inconsistent with the City’s adopted 2030 Comprehensive Plan (“Comprehensive Plan”),
not based on relevant and appropriate data and analysis, and other grounds alleged to violate the Community Planning Act, chapter 163, part II, Florida Statutes. The case was assigned as DOAH Case No. 19-2515GM.
On May 16, 2019, Petitioner Sierra Club timely filed a Petition for Formal Administrative Hearing with the Division. The case was assigned as DOAH Case No. 19-2544GM. The bases for the challenge were substantially similar to those alleged in DOAH Case No. 19-2515GM.
ATC and Sierra Club will be collectively referred to as “Petitioners,” unless the context requires their separate identification.
The applicant for the FLUM Amendment, Amelia Bluff, LLC (“Amelia Bluff” or “Intervenor”), moved to intervene in both cases. The cases were thereafter consolidated, and the motions to intervene were granted.
The cases were set for hearing on July 15 through 18, 2019.
Prior to the final hearing, a motion was filed by the City and Amelia Bluff to dismiss the Petition of Conserve Amelia
Now, Inc., on the basis that it did not exist as a legal entity prior to the adoption of the FLUM Amendment and, therefore, could not have submitted oral or written comments to the Fernandina Beach City Commission (the “Commission”), which is a prerequisite for standing as an “affected person” to bring a
challenge to a small scale development amendment pursuant to section 163.3187(5)(a). The motion was granted, and the Petition filed by Conserve Amelia Now, Inc. was dismissed.
On July 10, 2019, the parties filed their Joint Pre-hearing Stipulation (“JPS”). The JPS contained 32 individually numbered stipulations of fact. Those facts are incorporated herein. The JPS also includes 13 proposed stipulated matters of law. Some of the legal stipulations, particularly Proposed Stipulated Matters of Law paragraphs 3 through 5 are, upon review, stipulations of fact, and will be accepted as such. The pure issues of law, as set forth in Proposed Stipulated Matters of Law paragraphs 1, 2, and 6 through 12 accurately reflect the law applicable to this proceeding. Paragraph 13 contains stipulations of witness expertise, which are, as a baseline, accepted.
The final hearing convened as scheduled. At the commencement of the hearing, a Motion for Reconsideration of the order dismissing Conserve Amelia Now, Inc.’s Petition was taken up. The motion was denied. In addition, Petitioners requested that Alfred C. Laub be accepted as a qualified representative of Petitioners. Mr. Laub is an attorney admitted in the state of New York, but not in Florida. Upon questioning, the undersigned concluded that Mr. Laub met the criteria for a qualified representative and he was accepted as such.
At the final hearing, the parties’ Joint Exhibits 1 through 24 were received in evidence.
Petitioners offered the testimony of Julie Ferriera, Chair of the Nassau County Sierra Club Group; Robert Weintraub;
Dr. Sean McGlynn, who was accepted as an expert in environmental science, with expertise in water quality, aquatic system ecology, sampling, analysis, and hydrographic and hydrologic assessment; Arthur Herman, a member of the Board of Directors of Amelia Tree Conservancy, Inc.; Robert Prager, P.E., who was accepted as an expert in civil engineering, value engineering, and water resources engineering; Dr. Munsell McPhillips, who was accepted as an expert in water resources, value engineering, and materials engineering; and Rebecca Jetton, who was accepted as an expert in land planning and comprehensive planning, with an emphasis in wetland protection. Petitioners’ Exhibits 2
through 5, 8 through 10, 13, 14, 16 through 19, and 21 through 23 were received in evidence.
The City offered testimony of Kelly Gibson, its Director of Planning and Conservation, by video deposition, which was played at the hearing. Ms. Gibson was accepted as an expert in comprehensive planning and land planning. The City also offered the testimony of Jacob Platt, who was accepted as an expert in land planning; and Andre Desilet, who was accepted as an expert in stormwater and civil engineering. Amelia Bluff offered the
testimony of Nick E. Gillette, P.E., who was accepted as an expert in civil engineering, stormwater systems, and platting; Lee Gerald, who was accepted as an expert in environmental science and wetland ecology; and Brian Teeple, who was accepted as an expert in land planning and comprehensive planning.
Respondent/Intervenor’s Exhibits 1 through 3, 10 through 16,
17 (as to the staff report and preliminary plat), 18 through 27,
29 through 31, 36 through 43, 45, 48 through 50, 52, 54, and
55 were received in evidence. Respondent/Intervenor’s Exhibit 37 is the video and written transcription of the deposition of Kelly Gibson.
A public comment period was held starting at 7:00 p.m. on Monday, July 15, 2019. Twenty-four persons provided their comments, which were unanimously in opposition to the Amelia Bluff proposed subdivision.
A five-volume Transcript of the proceedings, including the Transcript of the public comment period, was filed on August 20, 2019. The parties timely filed Proposed Recommended Orders, which have been considered in preparing this Recommended Order.
On August 27, 2019, Respondent and Amelia Bluff filed a Joint Motion to Strike Portions of Petitioners’ Proposed Recommended Order, directed to paragraphs 78 through 82 of that Proposed Recommended Order. Those paragraphs focus on the extent to which the city did or did not address specific
consistency issues during the public meetings on the FLUM Amendment. The movants correctly note that the issue of whether the City complied with section 163.3181, governing public participation in the comprehensive planning process, was not pled in the Petition for Formal Administrative Hearing, and was not identified as an issue for disposition in the Joint Pre- hearing Stipulation. Issues of pleading and notice are not suspended in growth management cases. The issue not having been raised, paragraphs 78 through 82 of Petitioners’ Proposed Recommended Order are stricken. Despite that, however, the parties are directed to paragraphs 65 through 69, which discuss the City’s focus during much, if not all, of those meetings on whether the Conservation designation of the Property was a “scrivener’s error.”2/ As set forth herein, the issue is not what the City discussed or even considered at public meetings.
Rather, it is the “data and analysis” that was available to the City at the time the FLUM Amendment vote was taken. That data and analysis is discussed in detail herein.
FINDINGS OF FACT
The Parties and Standing
ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing
was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing.
Sierra Club is a national nonprofit organization with
67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing.
Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment.
The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and
chapter 163, part II. The subject property is located within the City’s jurisdiction.
Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding.
The Subject Property
The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school.
The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School.
The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision.
The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation.
The School Board Property is bounded on the east by
200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek.
The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level.
The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species,
interspersed with pine, holly and other species. The
10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development.
The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the
10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR.
The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision.
Maritime Forest/Maritime Hammock
There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.”
The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species.
Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although
a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’”
There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock.
The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially
connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway.
The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway.
There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan.
Egans Creek Greenway
The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas.
Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve.
The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.”
The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.”
The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel.
Procedural History of the Amelia Bluff Subdivision
In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property.
Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision.
On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24.
On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals.
On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and
(ii) Resolution 2017-123, which approved the MOU.
On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff.
On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision.
On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and
0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively.
On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval.
On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision.
On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018
(SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements.
In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements.
On October 18, 2018, Amelia Bluff applied for final subdivision plat approval.
The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR.
On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property.
City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019.
On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26).
On February 19, 2019, the Commission approved the FLUM Amendment on first reading.
On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request.
On April 16, 2019, the Commission adopted:
(i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat.
Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)”
Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective.
Other Governmental Authorizations
On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on
February 15, 2018.
On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs.
The Proposed Subdivision
The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs.
The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development.
The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction.
After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized.
The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff.
Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In
addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations.
The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded.
Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse.
Work Completed to Date
In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development.
Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.”
As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly
3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017.
On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018.
On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018.
On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request,
the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed.
City Commission FLUM Amendment Meetings
The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.”
The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the
Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge.
The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission.
The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and
Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019,
meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/
The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis
Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment.
Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data.
Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data.
When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc.
Challenges to the Plan Amendment
Small Scale Development Amendment
Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment
involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size.
The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and
Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part.
Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding,
Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the
Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin
County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC
Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein.
The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment.
Internal Inconsistency
In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows:
Policy 5.07.09.
The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns.
Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD.
As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater.
The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day.
Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater.
Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order.
The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its
pre-development state.
The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards.
Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second
(“CFS”), while post-development outfall is expected to be
0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS.
Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.”
Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/
The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to
rebut the presumption that state water quality standards would be met.
The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan.
The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive.
The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09.
Policy 5.07.12.
The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters.
Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy.
Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer.
The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the
appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12.
Objective 5.08. - Wetlands Protection and Preservation
Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows:
The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water.
Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following
policies:
Policy 5.08.05.
The City shall continue to ensure the protection and mitigation of wetlands,
consistent with existing state and federal regulations, and shall ensure the following:
Land uses which will have little or no adverse impact on wetlands;
Standards and criteria for wetlands which possess significant functional value; and
Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands.
Policy 5.08.06.
The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code:
Proper siting of development structures and infrastructure, including clustering of development away from wetlands;
Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and
Setback of buildings and other structures from wetlands and water bodies.
Policy 5.08.08.
In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field
survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development.
Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or
appropriate to a wetlands transition area shall be used.
The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer.
Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards.
The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and
preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08.
Objective 5.10. - Wildlife Planning.
The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A.
Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies:
Policy 5.10.01.
When reviewing development proposals for public or private development, the City shall take into account the following strategies:
* * *
Preserve native vegetation and habitat types;
Preserve forested areas, the understory and native soil associations; and
Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies.
Policy 5.10.02.
The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species.
The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . .
Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.”
The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low-
density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies.
Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However,
Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience.
The data and analysis was adequate to establish that the stormwater management system would not result in adverse
impacts resulting from the system, including dehydration of landscape features.
As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat.
The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02.
Objective 5.11. - Tree Preservation and Urban Forestry.
The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation.
Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.”
Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height.
In addition to the foregoing, the City Land Development Code has a provision that allows for up to
50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above.
As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees.
Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest.
The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11.
Objective 6.05. - Open Space.
Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands.
Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that
the proposed FLUM Amendment is inconsistent with the following
policy:
Policy 6.05.03.
Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements.
There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy.
Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy
6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment
of the FLUM after plat approval would not have been problems. This appears to be one.
It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated
open space lands would not be encroached upon. That scenario does not present here.
The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.”
Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts.
The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy
6.05.03. was supported by data and analysis as described above.
Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment
as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable.
Objective 6.10. - Egans Creek Greenway.
The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat.
The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway.
The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer.
As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City.
While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does
not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10.
Policy 1.02.04.
Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors:
Type and density or intensity of surrounding uses;
Zoning districts in the surrounding area;
Demonstration of adequate water supply and water supply facilities;
Appropriateness of the size of the parcel compared to the proposed use;
Physical condition of the site, and the suitability of soils and topography for the proposed use;
Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources;
Compatibility factors;
Impact on adopted levels of service standards and quality of service standards; and
Location in a Coastal Upland Protection Zone (CUPZ).
Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of
whether the FLUM Amendment creates an internal inconsistency with the policy.
As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04.
Data and Analysis
Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that:
All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added).
Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition:
Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes.
Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3).
Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes.
Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added).
Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt,
Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff.
Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove
beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion
In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of
July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties hereto pursuant to sections 120.569, 120.57(1), and 163.3187(3), Florida Statutes.
Chapter 120, Florida Statutes, and Florida Administrative Code Chapter 28-106 govern the conduct of this proceeding.
Chapter 163, part II, and the case law developed thereto, are the applicable law in this proceeding.
The City’s Comprehensive Plan has been adopted under and is in compliance with chapter 163.
The City’s Land Development Code has been adopted under chapter 163 and, by its terms, implements Comprehensive Plan policies and objectives.
The Greenway Management Plan was adopted in
August 1998 by Grant Awards Agreements between the City and the FDEP, and was most recently revised in May of 2015. The Greenway Management Plan was not adopted as part of the Comprehensive Plan. By its terms, the Greenway Management Plan implements certain Comprehensive Plan policies and objectives. Standing
To have standing to challenge or support a small scale development amendment pursuant to section 163.3187, a
person must be an “affected person,” which is defined in section 163.3184(1)(a) as including:
[P]ersons 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.
The extent to which a public-interest organization is an “affected person” was analyzed by Judge Donald R. Alexander as follows:
In Florida Wildlife Federation, Inc. et al. v. Department of Community Affairs et al., DOAH Case No. 03-2164GM (DOAH March 30, 2004; DCA July 16, 2004), 2004 Fla. ENV LEXIS 239,
the Department concluded that “the definition of ‘affected person’ makes no distinction between different classifications of businesses,” and that an affected person need not “have the trappings of ‘traditional’ business activities.” Id. at *6. Therefore, the lack of traditional business amenities such as a telephone number, occupational license, or office is not necessary to establish standing. It went on to hold that activities such as “participation in local government activities in furtherance of [the entity's] declared corporate purpose” and “involvement by the [affected person] in the local planning process” were sufficient to satisfy the statute. Id. at *8. Using these liberal standards, it is concluded that while [Petitioner] does not operate a
business in the classic sense, and its declared corporate purpose is unknown, it is occasionally involved in the local planning process. Therefore, it is arguably an affected person within the meaning of the statute.
Payne v. City of Miami, Case No. 04-2754GM (Fla. DOAH May 16,
2006; Fla. DCA June 22, 2006).
Petitioners have alleged standing as associations acting on behalf of the interests of their members. The evidence demonstrates that a substantial number of their members reside or own property in Fernandina Beach. The evidence adduced at the hearing is sufficient to demonstrate Petitioners’ associational standing under Florida Home Builders Association v. Department of Labor and Employment Security, 412 So. 2d 351
(Fla. 1982), and its progeny.
Petitioners participated in the City FLUM Amendment hearings, and submitted oral or written comments in opposition thereto. Thus, Petitioners are affected persons within the meaning of the statute.
Standards and Nature of Proceeding
Section 163.3187, which establishes the process for adopting small scale comprehensive plan amendments, provides, in pertinent part, that:
1) A small scale development amendment may be adopted under the following conditions:
The proposed amendment involves a use of 10 acres or fewer and:
The proposed amendment 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 . . . .
* * *
(4) Comprehensive plans may only be amended in such a way as to preserve the internal consistency of the plan pursuant to s. 163.3177 . . . .
(5)(a) Any affected person may file a petition with the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57 to request a hearing to challenge the compliance of a small scale development amendment with this act . . . . In the proceeding, the plan amendment shall be determined to be in compliance if the local government’s determination that the small scale development amendment is in compliance is fairly debatable . . . .
* * *
Small scale development amendments may not become effective until 31 days after adoption. If challenged within 30 days after adoption, small scale development amendments may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted small scale development amendment is in compliance.
In all challenges under this subsection, when a determination of compliance as defined in s. 163.3184(1)(b) is made, consideration shall be given to the
plan amendment as a whole and whether the plan amendment furthers the intent of this part.
“In compliance” means “consistent with the requirements of §§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the appropriate strategic regional policy plan, and with the principles for guiding development in designated areas of critical state concern and with part III of chapter 369, where applicable.” § 163.3184(1)(b), Fla. Stat.
The standard of proof to establish a finding of fact is preponderance of the evidence. See § 120.57(1)(j),
Fla. Stat.
The burden of proof and the initial burden of going forward rest with Petitioners.
Small scale comprehensive plan amendments adopted pursuant to section 163.3187(1)(c) are decisions which are legislative in nature and subject to the fairly debatable standard of review.
The FLUM Amendment shall be determined to be in compliance if the local government’s determination that the small scale amendment is in compliance is “fairly debatable.”
§ 163.3187(5)(a), Fla. Stat.; Coastal Dev. of N. Fla. v. City of
Jacksonville Bch., 788 So. 2d 204, 210 (Fla. 2001).
The “fairly debatable” standard, which provides deference to the local government’s disputed decision, applies
to any challenge filed by an affected person. Therefore, Petitioner bears the burden of proving beyond fair debate that the challenged FLUM Amendment is not in compliance. This means that “if reasonable persons could differ as to its propriety,” a plan amendment must be upheld. Martin Cnty. v. Yusem, 690 So.
2d 1288, 1295 (Fla. 1997).
It is well-established that all provisions of a comprehensive plan be read in pari materia and harmonized so that each provision is given effect. § 163.3187(5)(d); Katherine's Bay, LLC v. Fagan, 52 So. 3d 19, 28 (Fla. 1st
DCA 2010).
Data and Analysis
Section 163.3177(1)(f) provides, in pertinent part, that:
All mandatory and optional elements of the comprehensive plan and plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the comprehensive plan or plan amendment. 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.
* * *
2. Data must be taken from professionally accepted sources. The application of a
methodology utilized in data collection or whether a particular methodology is professionally accepted may be evaluated. However, the evaluation may not include whether one accepted methodology is better than another. Original data collection by local governments is not required. However, local governments may use original data so long as methodologies are professionally accepted.
In a de novo hearing on a plan amendment challenge, the data and analysis, which may support a plan amendment, are not limited to those identified or actually relied upon by the local government. All data available to the 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. See Zemel v. Lee Cnty., Case No. 90-7793GM (Fla. DOAH Dec. 16,
1992; Fla. DCA June 23, 1993), aff'd, 642 So. 2d 1367 (Fla. 1st
DCA 1994); see also Sierra Club v. St. Johns Cnty. & Dep’t of Cmty. Aff., Case Nos. 01-1851GM and 01-1852GM (Fla. DOAH May 20,
2002; Fla. 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). Further, the plan amendment may be supported by analysis conducted subsequent to adoption of the plan amendment. Zemel, Case No. 90-7793GM, R.O. at ¶¶ 137-138.
The local government is not required to undertake original data collection. See § 163.3177(1)(f)2., Fla. Stat. Local government plan amendments must be supported with data “available on that particular subject at the time of adoption of the . . . plan amendment at issue.” The fact that other data may be available is irrelevant, as long as the data upon which the City’s decision to adopt the FLUM Amendment is based is taken from professionally accepted sources and gathered through professionally accepted methodologies. § 163.3177(1)(f),
Fla. Stat.
Section 163.3187 - Small Scale Plan Amendment
Section 163.3187 does not require a landowner to include the entirety of its property in an application for a FLUM amendment. See Durham v. Polk Cnty., Case Nos. 03-0593GM and
03-0933GM (Fla. DOAH Feb. 24, 2004; Fla. ACC June 25,
2004)(“There is nothing in the Plan which requires an applicant for an amendment to include all of its property in a proposed amendment, or prevents an applicant from leaving a residual piece of property out of the application.”); The Vizcayans, Inc. v.
City of Miami, Case Nos. 07-2498GM and 07-2499GM (Fla. DOAH
July 10, 2008; Fla. ACC Mar. 31, 2009) (The word “use” in [section 163.3187(1)] refers to the property that is the subject
of the FLUM Amendment and is to be developed--here, the Site to be developed for residential use. It does not refer to adjoining
property that will not be developed for residential use and on
which the land use designation will not be changed.” (emphasis added)). Respondent and Intervenor have cited a number of cases suggesting that it is common practice for an applicant for a FLUM amendment to carve out a parcel that is less than 10 acres in size from a larger parcel in order qualify for a small scale amendment. Though the cases cited are not directly analogous to the situation in this case, they are instructive and generally supportive of a conclusion that the FLUM Amendment is applicable only to the parcel for which the land use designation is being changed, and not to a larger unchanged parcel, regardless of the larger parcel’s relationship to the amendment parcel.
Petitioners’ reliance on St. George Plantation Owners
Association v. Franklin County, Case No 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC, March 25, 1997), is misplaced. In that case, Judge Alexander found that wastewater treatment absorption beds, which were in a FLUM-designated residential area, were integral to a wastewater treatment plant, which was in the area subject to the commercial FLUM amendment. Thus, the absorption beds were not within an appropriately designated area for the
development proposed. If they were added into the area requiring a commercial designation, as Judge Alexander found they needed to be, then the acreage subject to the amendment exceeded 10 acres. The Administration Commission generally adopted the Recommended
Order and determined that “[t]hese Conclusions of Law are based upon the factual premise that the absorption beds are integral to the design of the wastewater treatment facility, and are therefore ‘involved’ in the development to the extent that the beds should be in the same land use category.”
Unlike the situation in St. George Plantation, the
proposed subdivision property outside of the Property subject to the FLUM Amendment is not in an area with a land-use designation that is inconsistent with the proposed subdivision, but rather is already in an area designated appropriately for the proposed development. Nothing has to be done to that property to make it consistent with the FLUM.
The FLUM Amendment at issue involves the designation of the Property, and the Property’s “use” for low-density residential development. The FLUM Amendment has nothing to do with the remainder of the proposed subdivision, which did not need a change in land use category. For that reason, the Property qualified for processing as a small scale amendment under section 163.3187(1).
Internal Inconsistency
Based on the foregoing Findings of Fact, Petitioner did not prove beyond fair debate that the FLUM Amendment is inconsistent with the individually discussed and analyzed
Comprehensive Plan objectives and policies, or section 163.3177(2), (3), or (6), as discussed therein.
Data and Analysis
Section 163.3177(1)(f) requires plan amendments to be “based upon relevant and appropriate data and analysis” by the local government, and includes “surveys, studies, community goals and vision, and other data available at the time of adoption.”
The FLUM Amendment is supported by the data collected and analysis provided by Amelia Bluff in support of its application.
Based upon the foregoing Findings of Fact, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based on relevant and appropriate data and analysis as required by section 163.3177(1)(f).
For the reasons stated above, Petitioner has not proven beyond fair debate that the FLUM Amendment is not “in compliance” with the specified provisions of chapter 163.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as
that term is defined in section 163.3184(1)(b), Florida Statutes.
DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida.
S
E. GARY EARLY Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2019.
ENDNOTES
1/ Except as otherwise provided herein, all references to the Florida Statutes are to the 2018 version, which was in effect when the FLUM Amendment was adopted.
2/ The undersigned has given no consideration to whether the Conservation designation was a “scrivener’s error.” The FLUM was adopted by a previous City Commission. There is no evidence as to what factors went into that Commission’s decision. There was no evidence that the previous Commission’s vote was invalid, or influenced by improper motives or incorrect information. It is an absolute shame that much of the confusion in this case was brought about by a statement of a senior City planner,
Mr. McCrary, made without a shred of authority and without any factual basis whatsoever, that a planning document adopted by the Fernandina Beach City Commission contained an error that he could “fix.” Mr. McCrary was not an elected official. He did not and could not know what was in the minds of the City officials when they voted to adopt the FLUM. Nonetheless, he decided, on his own, to embark on a course that, rightly or
wrongly, reasonably or unreasonably, misled a person lawfully seeking services from the City, much to their eventual detriment.
The bottom line is that this case will be decided solely on the basis of whether the FLUM Amendment is or is not consistent with the Comprehensive Plan, and not on whether the FLUM is accurate.
3/ The official survey and plat are accepted as depicting the size of the proposed subdivision. It is noted, however, that the surveyed size does not squarely match the narrative size, i.e., the 15.07-acre School Board Property, minus the 3.76-acre wetland conveyance, and minus the 0.917 dedicated right-of-way, leaves 10.393 acres. The difference of 0.103 acres was not expressly accounted for, but is of no consequence to the outcome of this proceeding.
4/ Pet. Ex. 4, file CM April 16, 1:20:00 through 2:02:34.
5/ Pet. Ex. 4, file CM April 16, 1:54:58 through 1:55:36.
6/ Pursuant to section 373.4131(3)(b), a stormwater management system designed in accordance with the stormwater treatment requirements and criteria adopted by a water management district is presumed not to cause or contribute to violations of applicable state water quality standards.
7/ The undersigned recognizes the incongruity of the requirement that there be evidence that data and analysis was available, with no corresponding requirement that there be evidence that the data and analysis was considered. However, it is not within the purview of the undersigned to question the legislative will or intent regarding the Community Planning Act.
COPIES FURNISHED:
Robert C. Apgar, Esquire Law Office of Robert Apgar
510 Frank Shaw Road Tallahassee, Florida 32312 (eServed)
Tammi E. Bach, Esquire City of Fernandina Beach
204 Ash Street
Fernandina Beach, Florida 32034 (eServed)
Emily Gordinier Pierce, Esquire Rogers Towers, P.A.
Suite 1500
1301 Riverplace Boulevard
Jacksonville, Florida 32207 (eServed)
William B. Graham, Esquire Carr Allison
305 South Gadsden Street Tallahassee, Florida 32301 (eServed)
Alison H. Sausaman, Esquire Carr Allison
The Greenleaf and Crosby Building
208 North Laura Street Jacksonville, Florida 32202-3500 (eServed)
Courtney P. Gaver, Esquire Rogers Towers, P.A.
Suite 200
100 Whetstone Place
St. Augustine, Florida 32086 (eServed)
T. R. Hainline, Esquire Rogers Towers, P.A. Suite 1500
1301 Riverplace Boulevard
Jacksonville, Florida 32207 (eServed)
Victoria Wilson, Esquire Victoria Wilson Esquire LLC 1543 Piper Dunes Place
Fernandina Beach, Florida 32034
Alfred C. Laub
19 Painted Bunting
Fernandina Beach, Florida 32034
William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Taya Orozco, Agency Clerk Department of Economic Opportunity Caldwell Building
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
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 |
|---|---|---|
| Oct. 16, 2019 | Agency Final Order | |
| Sep. 16, 2019 | Recommended Order | Petitioners failed to prove that the Future Land Use Map Amendment for the Amelia Bluff Subdivision was not in compliance with the Fernandina Beach Comprehensive Plan. |
