S TATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS C ECELIA M ATTINO , Petitioner , vs. Case No. 18 - 6250GM CITY OF M ARATHON , FLORIDA , Respondent . / NAJA GIRARD , Petitioner , vs. Case No. 19 - 1526GM CITY OF K EY W EST , F LORIDA , Respondent . / CATHERINE B OSWORTH , Petitioner , vs. Case No. 19 - 1839GM I SLAMORADA , V ILLAGE OF I SLANDS , FLORIDA , Respondent . / RECOMMENDED ORDER A duly - noticed final hearing was held in this matter in Marathon , Florida, on December 9 through 13 , 2019, before Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings. APPEARANCES For Petitioners : Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 Sarah Hayter, Esquire Shai Ozery , Esquire Robert Hartsell, P.A. 61 Northeast 1st Street , Suite C Pompa no Beach, FL 33060 For Respondent s City of Marathon ; and Islamorada, Village of Islands, Florida : Nicole Pappas, Esquire Barton Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 For Respondent, City of Key West: George Wallace, Esquire City of Key West, City AttorneyÔs Office 1300 White Street Post Office Box 1409 Key West, Florida 33040 STATEMENT OF T HE ISSUE Whether City of Marathon (ÑMarathonÒ) Comprehensive Plan Amendment 2018 - 01, adopted on October 23 , 2018 (the ÑMarathon Plan AmendmentÒ); City of Key West (ÑKey WestÒ) Comprehensive Plan Amendment 19 - 06, adopted on April 4, 2019 (the ÑKey West Plan AmendmentÒ); and Islamorada, Village of Islands (ÑIslamoradaÒ) Comprehensive Plan Amendment 19 - 03, adopted on March 5, 2019 (the ÑIslamorada Plan AmendmentÒ) (collectively, the ÑPlan AmendmentsÒ), are Ñin compliance,Ò as that term is define d in section 163.31 84(1)(b), Florida Statutes (2019 ). 1 PRELIMINARY STATEMENT On November 26, 2018, Petitioner, Cecilia Mattino , filed a Petition with the Division of Administrative Hearings (ÑDivisionÒ) challenging the Marathon Plan Amendment as not based on relevant and appropriate data and analysis and internally inconsistent with the City of Marathon Comprehensive Plan (the ÑMarathon PlanÒ) , among other allegations , in violation of the Community Planning Act, chapter 1 63, part II, Florida Statutes (Ñthe ActÒ). Ms. MattinoÔs petition was assigned to the undersigned as Case No. 18 - 6250. On March 1, 2019, Petitioner , Naja Girard , filed a Petition with the Division challenging the Key West Plan Amendment as violative of the Act on many of the same grounds . Ms. GirardÔs Petition was assigned to the undersigned as Case No. 19 - 152 6 . On April 9, 2019, Petitioner, Catherine Bosworth, filed a Petition with the Division challenging the Islamorada Plan Amendment as violative of the Act on many of the same grounds a s the other Petitioners. Ms. BosworthÔs Petition was assigned to Administrative Law Judge Francine Ffolkes as Case No. 19 - 1839. That case was transferred to the undersigned on April 22, 2019. Petitioners filed an Amended Joint Motion to Consolidate (Ñthe MotionÒ) the three cases, to which Respondents , Marathon and Islamorada , filed responses in opposition. Following a telephonic hearing on the Motion, the undersigned entered an Order of Consolidation on May 10, 2019. 1 Except as otherwise noted, all references to the Florida Statutes are to the 2018 version, which wa s in effect when the Plan Amendment s were adopted. The consolidated cases were scheduled f or final hearing on October 7 through 11, 2019; however, due to the undersignedÔs family medical emergency, the final hearing was continued and rescheduled to December 9 through 13, 2019. The final hearing commenced as rescheduled in Marathon, Florida. Petitioners testified on their own behalves, and offered the testimony of : Rebecca Jetton, accepted as an expert in comprehensive planning and planning in the Florida Keys ; Martin Senterfitt, the Monroe County Director of Emergency Management; and Richard F. Ogburn, accepted as an expert in comprehensive planning. Petitioners introduced the following Exhibits which were admitted in evidence: 2, 5, 6, 8, 10, 11, 34, 39, 47, 48, 54, 55, 60, 70, 71, 73 through 77, 83, 86 through 91, 94, 97, 100 through 102, 105, 106, 108, 117, 118, 127 through 129, 131, 139 (appendix 1C), 140, 147, 151, 158, 188, 189, 221, 223, and 228. Petitioner s proffered Exhibit 111, which was not admitted in evidence, but travels with the record of this proceeding. Respondents offered the t estimony of : George Garrett, MarathonÔs planning director; Ty Harris, IslamoradaÔs planning director; and Patrick Wright, Key WestÔs former planning director; each of whom is accepted as an expert in comprehensive planning; Michael Alfieri, accepted as an expert in hydrogeology and karstology; William Precht, accepted as an expert in marine ecology; and Joaquin Vargas, accepted as an expert in transportation planning. Respondents introduced Exhibits 1 through 17, 20 through 66, 68 through 83, 85 through 1 31, 133, and 135 through 153, which were admitted in evidence. The parties received the five - volume Transcript of the final hearing on February 3, 2020, 2 and on February 6, 2020, Petitioners requested an extension of time to file proposed recommended order s by March 13, 2020, which was granted. The partiesÔ Proposed Recommended Orders were timely filed and have been carefully considered by the undersigned in the preparation of this Recommended Order. Evidentiary Considerations Petitioners sought to introd uce the deposition testimony of two additional witnesses: Kathleen McKee and Donald Maynard. While the deposition transcripts were admitted, they constitute hearsay for which no exception under either section 90.803 or 90.804, Florida Statutes, applies. Se ction 90.803(22), which provides an exception from hearsay for former testimony given in a deposition taken in the course of the same proceeding, if the party against whom the deposition is offered had the same motive to develop the testimony, has been dec lared unconstitutional. See Grabau v. DepÔt of Health , 816 So. 2d 701, 709 (Fla. 1st DCA 2002). Further, Petitioners were unable to make the required showing of unavailability in order to introduce the former testimony of the two witnesses under the hearsa y exception provided in section 90.804(2). Petitioners offered no non - hearsay evidence to corroborate the hearsay depositions of Ms. McKee and Mr. Maynard. Respondents objected to the introduction of a number of exhibits relied upon by PetitionersÔ exper t planning witness, Ms. Jetton, in formulating her opinions regarding whether shallow injection wells contribute to nearshore water pollution. The articles were written by marine scientists, biologists, microbiologists, chemists, and other experts, and pub lished in a variety of scientific journals. An expert may rely upon facts or data of which the expert 2 The official Transcript was not filed with the Division until March 16, 2020, although the parties provided the undersigned with a copy prior to that date. does not have personal knowledge, if the facts and data are the type reasonably relied upon by experts in the particular field to support the opinion. § 9 0.704, Fla. Stat. The expert may even rely upon inadmissible evidence (i.e., hearsay) if the evidence is of a type Ñreasonably relied upon by experts in the subject to support the opinions expressed[.]Ò Id . In this case, RespondentsÔ objections are well - ta ken. Ms. Jetton is an expert in comprehensive planning, very experienced and well - versed in the planning history of the Keys, particularly as a former employee of the state agency with oversight over planning and development in the Keys. However, Ms. Jetto n is not a biologist, chemist, marine scientist, or other scientific expert who would typically rely upon the studies and publications in scientific journals for formulating an opinion on, for example, Ñthe fate and transport of sewage in the subsurface en vironment and the potential for contamination of marine surface waters[.]Ò 3 The documents on which Ms. Jetton relied in formulating her expert planning opinions were admitted, but those documents remain uncorroborated hearsay. The undersigned has given t he appropriate weight to Ms. JettonÔs testimony on these issues. FINDINGS OF F ACT The Parties and Standing 1 . Ms. Mattino resides in Marathon with her daughter and her fiancé. She submitted written objections to Marathon regarding the Marathon Plan Amendment prior to the October 23, 2018 public hearing at which Marathon adopted the Plan Amendment. 3 John H. Paul, Viral Tracer Studies Indicate C ontamination of Marine Waters by Sewage Disposal Practices in Key Largo, Florida , Applied and Envtl . Microbiology, 2230 - 34 ( June 1995 ) . 2 . Ms. MattinoÔs daughter is severely disabled, requires specialized equipment (including a specialized wheelchair), and requires full - time care, for which Ms. Mattino relies upon a variety of caretakers. Her d aughter has t o be transported in a specially - equipped vehicle to accommodate the wheelchair and other equipment . 3 . In the event Ms. Mattino is required to evacuate for a hurricane, she will need to bring a n additional vehicle to transport her daughter Ô s medical equipment, which requires additional personnel. 4 . P rolonged car rides are dangerous for Ms. MattinoÔs daughter because she has a seizure disorder that worsens when she is aggravated or stressed. P r olonged car rides are also stressful for Ms. Mattino, who has high blood pressure and has had several heart attacks. 5 . Ms. Mattino evacuated for Hurricane Irma and testified that she encountered heavy traffic, which was made more stressful by the need to stop approximately every two hours to attend to her daughterÔs medical needs. 6 . Ms. Mattino claims that if the Plan Amendments increase the amount of time it takes her to evacuate the Florida Keys before a hurricane, it would cause additional stress and would put her and her daughterÔs health at risk. Ms. Mattino maintains these concerns are unique to her and her family and that emergency evacuation is more difficult and dangerous for her and her family than it is for the general public. 7 . Ms. Bosworth resides in Islamorad a with her daughter, son - in - law , and their two children. She submitted written objections to the Islamorada Plan Amendment prior to the April 4, 2019 public hearing at which Islamorada adopted the Plan Amendment . 8 . Ms. Bosworth previ ously evacuated for Hurricanes Andrew and Irma, which required preparation time to gather her pets, pack pet supplies, and secure her boat, as well as secure her outdoor belongings and put up her hurricane shutters. Securing her boat and putting up her shu tters requires the assistance of her son - in - law. Ms. Bosworth believes her circumstances are unique because her son - in - law is a fire fighter and paramedic in Parkland, Florida, and is not always available to help her prepare her property for a hurricane. 9 . Ms. Bosworth claims that if traffic congestion increases or worsens as a result of the Plan Amendments , it would affect her and her family because she would be concerned that she would get stuck on the highway while trying to evacuate for a hurricane. F urther, Ms. Bosworth testified that she and her family enjoy going out on the boat and snorkeling and that if IslamoradaÔs nearshore water quality became degraded or impaired it would affect her quality of life. 10. Ms. Girard is a resident of Key West . S he submitted oral or written objections to the Key West Plan Amendment prior to the March 5, 2019 public hearing at which Key West adopted the Plan Amendment . 11 . Ms. Girard testified that , due to her and husbandÔs marine - based business and residential ten ants , she and her husband would wait until the very last minute to evacuate regardless of when an evacuation advisory was issued by the Monroe County Emergency Management Office. 12 . Ms. Girard did no t evacuate for Hurricane Irma o r any other hurricane si nce moving to a site - built home in Key West in 2007. 4 13 . Marathon, Islamorada, and Key West, are all municipalit ies with the duty and authority to adopt a comprehensive plan, pursuant to section 163.3167, Florida Statutes (2019). Background 14 . In 1972, the Florida Legislature enacted the Environmental Land and Water Management Act, which provided the basis for state designation of Areas of Critical State Concern (ÑACSCÒ). 5 The statute provides criteria for 4 Ms. Girard previously lived on vessels in the Key West area. 5 The Environmental Land and Water Management Act was en acted prior to the 1985 Growth Management Act, chapter 163, part II, when most local governments did not have programs and personnel to guide development in a manner that would ensure protection of natural resources. designating an ACSC, which is generally Ñ[a]n a rea containing È environmental or natural resources of regional or statewide importance,Ò such as wildlife refuges, aquatic preserves, and state environmentally endangered lands. § 380.05(2), Fla . Stat . (2019). 6 15 . In 1974, the Florida Keys (Monroe Count y and its municipalities) w ere designated an ACSC due to the areaÔs environmental sensitivity and mounting development pressures. 16 . The designation was effectuated by the adoption in 1979 of section 380.0552, Florida Statutes, the ÑFlorida Keys Area Pro tection Act.Ò The Act establishes the legislative intent to establish a land use management system that, among other things, Ñprotects the natural environment,Ò Ñconserves and promotes the community character,Ò Ñpromotes orderly and balanced growth in accordance with the capacity of available and planned public facilities and services,Ò and Ñpromotes and supports a diverse and sound economic baseÒ in the Keys. § 380.0552(2), Fla . Stat . (2019). 17 . The ACSC designation transferred all local Keys planning and development review and approval rights to the state land - planning agency, the Florida Department of Community Affairs (ÑDCAÒ). 7 While the Keys local governments can adopt and amend their plan and land development regulations, those provisions do not take effect until approved by administrative rule. See § 380.0552(9), Fla. Stat. 6 The statute contains additional speci fic criteria for designation, including the economic and ecological value of the area; presence of critical habitat of any state or federally designated threatened or endangered plant or animal species; inherent susceptibility to substantial development du e to its geographical location or natural aesthetics; and the anticipated effect of development on the environmental or natural resources of regional or statewide importance. § 380.05(2), Fla. Stat. (2019). 7 The 2011 Legislature transferred the DCA Divis ion of Community Planning , via Type II transfer , to the Department of Economic Opportunity. See ch. 2011 - 142, § 3, Laws of Fla. 18 . In 1986 , Monroe County updated its comprehensive plan to be consistent with the 1985 Growth Management Act. 8 Several administrative challenges followed, initiated by both DCA and private entities and individuals. 19 . Monroe County revised its comprehensive plan in 1993 to resolve many of the issues raised in the litigation, but those amendments were again challenged in administrative proceedings. 20 . The second challenge cul minated in a final order of the Administration Commission in 1995 finding the 1993 Monroe County Plan not Ñin compliance,Ò with the Act and the Principles for Guiding Development in the Keys ACSC (Ñthe PrinciplesÒ), which are adopted by rule of the Administration Commission. The Final O rder found that Ñthe environment of the È Keys is the very essence of Monroe CountyÔs economic base. The uniqueness of the environment È and the current condition of the environment must be addressed in any growth management decision[].Ò DCA v. Monroe Cty ., 1995 Fla. ENV LEXIS 129 (Fla. ACC 1995). 21 . The litigation highlighted aspects of the Florida Keys ecosystem as having limited capacity to sustain additional impacts from development. Of particular concern was the declin ing water quality of the nearshore environment due to lack of central sewer facilities, the loss of habitat for state and federally - listed species, public safety in the event of hurricanes, and a deficit of affordable housing. Relevant to PetitionerÔs chal lenge, the Final Order found that the ability of the nearshore waters of the Keys to withstand additional degradation from sewage and stormwater discharges Ñhas already been reached or even exceeded , Ò and that development of the Keys Ñis degrading the near shore waters at or over carrying capacity.Ò 8 The Growth Management Act was significantly amended and renamed the ÑCommunity Planning Act,Ò by chapter 2011 - 142, Laws of Fl orida. 22 . The 1995 Final Order required Monroe County to undertake certain Ñremedial actionsÒ in order to bring the Plan into compliance with both the Act and the Principles, which are adopted in section 380.0552. 2 3 . Among the remedial actions was the requirement that Monroe County establish a Permit Allocation System (ÑPASÒ) for new residential development. The Administration Commission explained, as follows: The [PAS] shall limit the number of permits issued for n ew residential development È provided that the hurricane evacuation clearance time does not exceed 24 hours È. The County shall adjust the allocation based upon environmental and hurricane evacuation constraints and È to account for permits and vested unit s in È the Keys. 24 . Monroe County amended its plan in 1996 to implement the PAS and other remedial actions, and adopted a Ñcarrying capacity approachÒ to planning in the ACSC. 25 . The amended comprehensive plan was approved by rule of the Administratio n Commission Ð Florida Administrative Code Rule 28 - 20, which also established a comprehensive work program designed to improve the Keys Ô water quality and protect the habitat of threatened and endangered species. 26 . The rule was subject to another administ rative challenge, and the Division issued a final order upholding the rule in 1997. See Abbott v. Admin. CommÔn , Case No. 96 - 2027RP (Fla. DOAH May 21, 1997). The Carrying Capacity Study 27 . The work program adopted by the rule included the requirement to conduct a Ñcarrying capacity analysisÒ for the Florida Keys. Florida Administrative Code Rule 28 - 20.100 provided, ÑThe carrying capacity analysis shall be designed to determine the ability of the Florida Keys ecosystem, and the various segments thereof, t o withstand impacts of additional land development activities.Ò The rule established that the analysis should be based on the findings adopted by the Administration Commission on December 12, 1995, Ñor more recent data that may become available in the cour se of the study,Ò and upon the benchmarks of, and all adverse impacts to, the Keys natural land and water systems, in addition to the impacts of nutrients on marine resources. 28 . The study was undertaken beginning in 1996 and was sponsored jointly by DCA and the Army Corps of Engineers (Ñthe CorpsÒ) and involved 38 separate state and federal agencies. The study modeled a series of future development scenarios, as well as redevelopment and restoration scenarios. 29 . The Final Report 9 of the Florida Keys Carrying Capacity Study (ÑFKCCSÒ) was issued in September 2002. The major findings include the following: ? Development suitability in the Florida Keys is extremely restricted, due to the following characteristics: Existing development has displaced nearly 5 0 percent of all upland habitats, and remaining uplands are distributed in patches of 10 or fewer acres; almost every native area is potential habitat for one or more endangered species; over 50 percent of all private lands are wetland parcels, and development suitability of remaining lands is low or marginal due to open space requirements, lack of infrastructure, and other factors. ? Future growth is limited in the next 20 years Ð less than 10 percent growth in the number of dwelling units and population Ð due to infrastructure limitations. Permitted capacity of potable water withdrawals was exceeded in 1999 and 2000; improvement of hurricane evacuation clearance times is dependent on structural improvements to U.S. Highway 1, which will increase government cost s, nutrient loading, and indirect impacts to wildlife and 9 The document introduced in evidence is titled ÑDraft Final Report.Ò According to the testimony of Rebecca Jetton, no other final report was issued by the study sponsors. habitats; and residential capacity is limited to 6,000 units in order to maintain the state - mandated level of service for roadways. ? All six future scenarios would result in disproportionate increas e in government expenditures with respect to increased population, which will require increased taxation on both local residents and tourists. ? The existing data Ñare insufficient to establish quantitative, predictive relationships between land use or deve lopment and the marine environment.Ò The study documented human impacts to the marine ecosystem and species. The study underscores the benefits of wastewater treatment, Ñbut other impacts are more related to resource management than to land development.Ò 30 . The study provides the following four major guidelines for future development in the Florida Keys: 1. Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats and species have been severely affected by development and further impacts would only exacerbate an already untenable condition. 2. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition progr ams, the wastewater and stormwater master plans, ongoing research and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Keys. 3. If further development is to occur, focus on redevelopment and infil l. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. 4. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. 31 . Rule 28 - 20.001 required the findings of the FKCCS to be implemented by Ñadoption of all necessary [comprehensive plan] amendments to establis h a rate of growth and a set of development standards [to] ensure that any and all new development does not exceed the capacity of the countyÔs environment and marine system to accommodate additional impacts.Ò The study would provide the state and the Keys local governments with an analytical tool to support future comprehensive plan amendments and revisions of land development regulations. 24 - Hour Hurricane Evacuation 32 . In 2006, following the publication of the FKCCS, the Legislature amended section 380 .0552 to require the local governments to adopt provisions in their comprehensive plans to Ñprotect the public safety and welfare in the event of a natural disaster by maintaining a hurricane evacuation clearance time for permanent residents of no more tha n 24 hours.Ò § 380.0552(4)(e)2., Fla. Stat. (2007). The requirement remains in effect and is enforced by the state through review of local government plan amendments. See § 380.0552(9)(a)2., Fla. Stat. ROGO and BPAS 33 . Principle among the Monroe County a mendments to implement the remedial actions ordered b y the Administration Commission was the PAS, implemented in the County by a Rate of Growth Ordinance (ÑROGOÒ). The current version of the administrative rule approving the CountyÔs comprehensive plan is r ule 28 - 20.140, which also governs and approves ROGO. The rule provides the maximum number of permits for residential development that may be issued annually, with a split between affordable and market rate units. The current cap is 197 units per year, wit h a minimum of 71 units allocated for affordable housing and a maximum of 126 market rate units. Any unused affordable housing units Ñroll overÒ for affordable housing units the following year. Other unused allocations may be rolled over and used for affor dable housing units or Ñadministrative relief.Ò 10 34 . Islamorada and Marathon were not yet incorporated when the comprehensive plan litigation began and subsequent remedial measures were issued. Since their incorporation, each of the cities has been brough t under the umbrella of the ACSC designation. The citiesÔ respective comprehensive plans and land development regulations are subject to the same review and approval authority of the Administration Commission, and are subject to similar work plans to imple ment the remedial measures required by the commission. The applicable a dministrative rules are chapter 28 - 19 for Islamorada and chapter 28 - 18 for Marathon. 35 . Marathon and Islamorada have permit allocation requirements similar to Monroe County, known as the Building Permit Allocation System (ÑBPASÒ). Their respective administrative rules provide the annual maximum number of permits and the split between affordable and market rate units, as well as the rules governing rollover of unused allocations. 11 36 . BPAS is a competitive system. Permit applications are awarded points based on their alignment with specific development criteria, such as presence or absence of wetlands or protected habitat, and availability of public services. Those applications with the highest points are awarded available permits for the BPAS year. 10 Unused allocations may be provided to applicants who have been denied a per mit, despite having met all the requirements of the land development regulations, if they have been in the allo cation system for a significant number of years. 11 MarathonÔs annual cap is 30 units and IslamoradaÔs is 28 (22 market rate and 6 affordable hou sing). Work Program 37 . Each of the municipalitiesÔ governing rules includes a work program, broken down into the following categories: (1) carrying capacity implementation; (2) wastewater implem entation; and (3) wastewater project implementation. MarathonÔs work program includes a fourth category Ð stormwater treatment facilities. 38 . The specific activities of each work program differ somewhat. For example, with respect to environmentally - sensitiv e lands, Islamorada was required to apply for land acquisition funds, while Marathon was required to apply and adopt land development regulations limiting permit allocations in high quality habitats. Monroe County was required to adopt conservation plannin g mapping into its comprehensive plan. 39 . The wastewater implementation and wastewater project implementation sections of the work program s are of high importance. The litigation highlighted the declining water quality of the nearshore environment due to a lack of central sewer facilities. The Keys Ô wastewater treatment ÑsystemÒ consisted of a hodgepodge of some 23,000 septic tanks, 2,800 cesspits, and at least 249 small package treatment plants. 40 . The work program represents a monumental, long - term, a nd expensive 12 infrastructure project to build a central sewer system in the Keys, followed by a program to require existing developments to connect to the system, and land development regulations to direct new growth to areas served by central wastewater t reatment facilities. Each local government work program includes specific target dates to obtain funding for, and construction of, each component of the sewer system, as well as specific target 12 In both 2012 and 2016, the Florida Legislature authorized expenditure of Everglades restoration bond funds for Florida Keys wastewater and stormwater management projects ; and, in 2016, appropriated $5 million in Florida Forever funds for said proj ects for the 2016/2017 year. More than $13 million was included in the general appropriations act for said projects in the 2017/2018 year. dates for initiating and completing connections of existing de velopment to the newly - constructed system. 41 . Monroe CountyÔs work program also includes directives for funding stormwater improvement projects and deadlines for completing said projects. ACSC Annual Reports 42 . The local governments and the Department o f Economic Opportunity (ÑDEOÒ) are required to report to the Administration Commission annually documenting Ñthe degree to which work program objectives for the work program year [ 13 ] have been achieved.Ò 43 . Achievement of work program objectives is directl y tied to the BPAS and ROGO Ð if the Administration C ommission finds that work program objectives have not been achieved, it can reduce the unit cap for residential development by 20 percent for the following year. 14 Additionally, through the BPAS and ROGO, t he local governments are required to direct new growth to areas served by central sewer. Each application for building permit is awarded an additional four points 15 if the parcel is served by central sewer meeting statewide treatment standards. 44 . In the 2017 ACSC annual report, the most recent report for which the parties requested official recognition, Islamorada reported it had connected 85 percent of potential customers (with another five percent in the application process), Marathon had connected 97 p ercent, and Monroe County had an overall connection rate of 86 percent (with higher percentages for specific individual treatment facilities). 13 The work program year runs from July of one year to June of the following year . 14 The Islamorada rule does not co ntain this provision; however, it does provide that, if the Administration Commission determines progress has been made for the work program year, then the Commission Ñshall restore the unit capÒ of 28 allocations for the following year. It is unclear whet her Islamorada was already under penalty when the new rule was adopted or whether this is an oversight in the rule. 15 In Islamorada, the award is two additional points. City of Key West 45 . Key West challenged its inclusion in the original ACSC designation, and, in 1984, was desi gnated as a separate area of critical state concern (Ñthe Key West ACSCÒ), effectuated by the adoption of Florida Administrative Code Chapter 28 - 36. 46 . The Key West ACSC is subject to the same land planning and development regulation oversight as the Flo rida Keys ACSC, and the Key West comprehensive plan and land development regulations are approved by the state through Florida Administrative Code Chapters 28 - 37 and 9B - 30. 47 . Key West is subject to separate principles for guiding development than the Florida Keys ACSC, which are found in r ule 28 - 36.003. Key West is served by central sewer and does not have work program tasks. Hurricane Evacuation Clearance Time 48 . The work program requires the local governments within the Florida Keys ACSC to enter int o a Memorandum of Understanding (ÑMOUÒ) with the DEO, the Division of Emergency Management, and each of the other Keys local governments, to stipulate to the input variables and assumptions for utilizing the Florida Keys Hurricane Model, or other models ac ceptable to DEO, to accurately depict hurricane evacuation clearance times for the population in the Keys. The work program required, by July 1, 2012, the local governments to run the model with the agreed upon variables from the MOU Ñto complete an analys is of the maximum build - out capacity for the ACSC, consistent with the requirement to maintain a 24 - hour evacuation clearance time and the [FKCCS] constraints.Ò 49 . DEO appointed a Hurricane Evacuation Clearance Time Work Group (the ÑWork GroupÒ) including members of each of the six local governments and representatives from the tourism industry, chamber s of commerce, and community organizations, as well as from state and federal agencies. The Work Group held a series of public workshops to consider hurrica ne model inputs Ð census data, behavioral studies, hurricane forecasting, military evacuation procedures, traffic flow rates, and number and location of vacant platted lots. 50 . The Work Group selected the Division of Emergency ManagementÔs Transportation Interface for Modeling Evacuations (ÑTIMEÒ) as the model to accurately depict evacuation clearance times for the population of the Keys ACSC and the Key West ACSC (Ñthe Florida Keys ACSCsÒ). The Work Group agreed on 10 modeling assumptions, including the nu mber of tourist units, and of those, the number occupied; the number of mobile home units and evacuation participation rates; and the number of site - built units, the occupancy rate, and participation rate of residents in those units, among other important variables. The inputs and assumptions were tested by modeling over 100 evacuation scenarios. 51 . The Work Group presented its findings on June 8, 2012, and selected evacuation scenario M5, which provided for continuation of then - existing annual building pe rmit allocations that were adopted by rule or comprehensive plan amendment (with the exception of Key Colony Beach and Key West). Scenario M5 produced an evacuation clearance time of 24 hours with a future allocation of 3,550 new residential building permi ts. 52 . Notably, scenario M5 assumed that military, mobile home residents, and tourists would evacuate during Phase I of what DEO described as a two - phase evacuation plan. Further, M5 assumed that 15 percent of existing mobile homes would convert to site - b uilt homes. 53 . In the two - phase evacuation plan, tour ists are ordered to evacuate 48 hours in advance of predicted tropical storm force winds, and residents of mobile homes are ordered to evacuate 36 hours in advance. The model predicted an evacuation cle arance time of 16 hours and 30 minutes for Phase I using tourist occupancy rates for July, and 17 hours and 30 minutes using tourist occupancy rates for the Labor Day weekend. 54 . Under Scenario M5, residents of site - built units are ordered to evacuate 30 hours in advance, giving those residents six hours of lead time to secure property and make other preparations. Under scenario M5, all site - built residences were evacuated within 24 hours of predicted tropical storm force winds, including an additional 3, 550 units. As such, the work group determined 3,550 units to be the maximum buildout of the Keys through 2023 to maintain the 24 - hour hurricane evacuation mandate in section 380.0552. 55 . The Work Program directed DEO to Ñapply the derived clearance time t o assess and determine the remaining allocations for the [ACSC]Ò and recommend revisions to the allocation rates and distribution of allocations to the six local governments, as well as any recommended changes to the local government comprehensive plans. D EO completed that task, and determined that a maximum of 3,550 additional units could be distributed over the next ten years, beginning in July 2013. 56 . On November 5, 2012, Monroe County, Marathon, Islamorada, Key Colony Beach, Key West, the City of Layt on, the Division of Emergency Management, and DEO, entered into an MOU agreeing on the use of the TIME model, as well as the data, input variables, and assumptions to be utilized in model runs. The following ÑwhereasÒ clause succinctly provides the results of the M5 scenario: WHEREAS, from among the scenarios provided by DEO at the June 8, 2012, Work Group meeting, Scenario M5 included the 2010 Census site - built units (43,760 units); the maximum number of residential building permits for new construction fo r all Local Governments per year for 10 years (annually, County 197, Marathon 30, Islamorada 28, Key West 90, Key Colony Beach 6, and Layton 3); 1,248 mobile home units projected to convert to site - built units; the exclusion of 870 dwelling units on the Na val Air Station; as well as two (2) functional evacuation lanes from MM 108 - 126. Further the work group recommended Scenario M5 with the provision that the City of Key West would transfer annually (by July 13 th ) any remaining or unused (90 allocations) all ocations to the other Local Governments based upon the Local GovernmentsÔ ratio of vacant land. 57 . Technical correcti ons made after the June 8, 2012 meeting, the census - based number of site - built units was revised to 43,718 and the Key West allocation wa s revised to 91. 58 . The MOU also memorializes the following staged evacuation procedure: ? Approximately 48 hours in advance of tropical storm winds, mandatory evacuation of non - residents, visitors, RVs, travel trailers, live - aboard vessels (transient and non - transient), and military personnel. ? Approximately 36 hours in advance, mandatory evacuation of mobile - home residents, special needs residents, and hospital and nursing home patients. ? Approximately 30 hours in advance, mandatory phased evacuation of permanent residents by evacuation zone. [ 16 ] 59 . The phased evacuation procedure is also adopted in each of the local government comprehensive plans, except Key West, which adopted the procedure by resolution. Affordable Housing 60 . The need for additional aff orda ble housing in the Keys is well documented, and the parties stipulated, generally, to the need. 61 . Numerous factors contribute to the need for affordable housing, including, but not limited to, the high cost of living, higher construction costs, the high cost of land, as well as the limited supply and high demand for real estate and housing throughout the Florida Keys. The need for affordable housing was exacerbated by Hurricane Irma, which made landfall in the Florida Keys in Se ptember of 2017 and des troyed approximately 400 mobile 16 There are five hurricane evacuation zones in the Keys designated by mile marker numbers along US 1. homes, Ñpermanent RVÔs ,Ò and ground - level single - family homes th at served as affordable housing, many for members of the Keys workforce. 62 . Most of the site - built homes destroyed were not built to current building code stan dards, but were ÑgrandfatheredÒ from code compliance. Those structures must be rebuilt to code, which will likely take them out of financial reach of members of the Keys workforce. 63 . Provision of affordable housing is an important aspect of the regulator y framework for planning in the Keys. 64 . The litigation over the Monroe County comprehensive plan highlighted a deficit of affordable housing in the Keys. Among the Principles is the requirement to Ñ[make] available adequate affordable housing for all sectors of the populati onÒ of the Keys. £ 380.0552(7)( l ), Fla. Stat. When designating the ACSC, the Legislature expressed the intent to Ñ[p]rovide affordable housing in close proximity to places of employmentÒ in the Keys. § 380.0552(2)(d), Fla. Stat. The Key s Workforce Housing Initiative 65 . Shortly after Hurricane Irma, Marathon began discussion s with DEO about the possibility of obtaining additional building permit allocations for workforce - affordable housing. 66 . In November 2017, Marathon passed Resoluti on 2017 - 99 requesting the allocation of 300 affordable housing allocations from DEO with approval of the Administration Commission. 67 . DEO determined there were not enough building permits available under the current regulatory structure to address the n eed for affordable housing in the Florida Keys. As a result, DEO developed the Keys Workforce Affordable Housing Initiative (the ÑHousing InitiativeÒ) to allow up to 1,300 new building permit allocations for workforce housing throughout the Florida Keys, w ith an initial allocation not to exceed 300 per local government. 68 . Under the Housing Initiative, the additional units are to be deed - restricted for workforce affordable housing an d required to evacuate in Phase I, along with tourists, visitors, mobile h ome residents, and military personnel. 69 . T he Administration Commission approved the Housing Initiative at the June 13, 2018 meeting. In support of the Housing Initiative, DEO staff made a presentation asserting that the Phase I evacuation (under the exis ting staged evacuation plan) can be accomplished in 17.5 hours, leaving additional capacity of 6.5 hours in Phase I. DEO concluded that the Housing Initiative Ñwill not interfere with the 24 - hour evacuation model and satisfies the statutory mandate to prov ide affordable housing.Ò 70 . Following approval by the Administration Commission, DEO worked with Marathon and other local governments to amend their comprehensive plans to implement the Housing Initiative. The Plan Amendment s 71 . The Marathon Plan Amendm ent creates a new Future Land Use (ÑFLUÒ) goal stating the intent to participate in the Housing Initiative approved by the Administration Commission. It further creates a new FLU Objective establishing a Ñnew limited categoryÒ of building permit allocation s known as ÑAffordable Ï Early Evacuation PoolÒ providing 300 workforce affordable building permit allocations in addition to the allocations identified in chapter 28 - 18. The Marathon Plan Amendment creates five new FLU policies. The first allows for distr ibution of the allocations Ñat any timeÒ provided applicable Marathon public notice and hearing procedures are followed and the distribution is based on the BPAS ranking procedures in effect. 72 . The second policy provides the following ÑSpecific Standards and Requirements for Workforce Affordable HousingÒ: Affordable - Early Evacuation residential units under this program shall: a. be multifamily structures; b. be rental units; c. require, at a minimum, adherence to the latest edition of the Florida Buildi ng Code[]; d. not be placed in the V - Zone or within the Coastal Barrier Resource Systems; e. require on - site property management; f. comply with applicable habitat and other locational criteria and densities for multifamily affordable housing units; g. shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock, or fresh water wetlands (disturbed categories excepted); h. incorporate sustainable and resilient design principles into the overall site design; i. ensur e accessibility to employment centers and amenities; and j. require deed - restrictions ensuring: (i) the property remains workforce - affordable housing in perpetuity; (ii) tenants evacuate during the period in which transient units are required to evacuat e; (iii) rental agreements contain a separate disclosure requiring renters to acknowledge that failure to adhere to the evacuation requirement could result in severe penalties, including eviction, to the resident; and (iv) on - site property managers are f ormally trained in evacuation procedures. 73 . The third policy exempts from the early evacuation requirement all first responders, correctional officers, health care professionals, or other first - response workers required to remain during an emergency. 74 . The fourth policy requires the workforce - affordable developments to comply with federal accessibility standards. 75 . The last policy requires Marathon to provide DEO with an annual report on the implementation of the Housing Initiative, including documen ting the number of workforce - affordable housing units built, occupancy rates, and compliance with the early evacuation requirement. The report is to be included in the DEO annual work program report to the Administration Commission. 76 . IslamoradaÔs plan a mendment provides 300 workforce - affordable building permit allocations in addition to the allocations identi fied in chapter 28 - 19. In all other respects the amendment is identical to the Marathon Plan Amendment. 77 . The Key West Plan Amendment approves the receipt of 300 workforce - affordable building permit allocations Ñas well as any additional allocations which may be authorized by the Florida Administration Commission or transferred to Key West that are not accepted by other Florida Keys municipalities o r Monroe County.Ò Rather than authorizing distribution of the allocation Ñat any time,Ò Key West authorizes distribution Ñon a first - come first - served basis and at any timeÒ following public notice and hearing procedures. Allocation of the Key West permits is not required to follow BPAS ranking unless the number of applications received exceeds the authorized allocation. There are also two minor differences in the ÑStandards and Requirement for Workforce - Affordable HousingÒ in the Key West Plan Amendment: i t does not contain the paragraph prohibiting placement of units in buttonwood and hardwood hammock; and it does not require that property managers be trained in evacuation procedures. Otherwise, the Key West Plan Amendment is virtually identical to that ad opted by Marathon and Islamorada. PetitionersÔ Challenges 78 . Petitioners challenge the Plan Amendments, generally, as inconsistent with the FKCCS and the carrying capacity approach to planning in the Keys. The two main contentions are hurricane evacuation and environmental concerns. Hurricane Evacuation 79 . Petitioners posit that the Plan Amendments violate the Principles and the MOU 17 , and render the local government comprehensive plans internally inconsistent, by exceeding the requirement to evacuate the Keys permanent population in no more than 24 hours. Petitioners also argue the plan amendments are not supported by adequate data, and a professionally - acceptable analysis thereof, on hurricane evacuation clearance times. 80 . At first blush, PetitionersÔ a rgument has merit : the Plan Amendments allow up to 1,300 units to be built in the Keys beyond the previously - established maximum buildout of 3,550 units through the year 2023. That buildout number was derived directly from the Work Group after agreement on all assumptions and inputs for, and multiple runs of, the agreed - upon TIME model, and identification of the M5 scenario as the best model for evacuation of permanent population within 24 hours. 81 . It is undisputed that the new residential units to be all ocated under the Housing Initiative will house permanent residents. That fact alone is not in direct conflict with the 24 - hour evacuation requirement because, as implemented, the evacuation plan requires some permanent residents Ð residents of mobile homes, Ñpermanent RVs, Ò live - aboard vessels, and military personnel Ð to evacuate in advance of the start of the 24 - hour clock. 17 As explained in the Conclusions of Law, PetitionersÔ contention that the Plan Amendments are inconsistent with the MOU is rejected. Inconsistency with the MOU is not a statutory compliance issue. That requirement is incorporated into the local government comprehensive plans which have previously been found to be Ñin complianceÒ Ð meaning both internally consistent and consistent with the Principles. 82 . Petitioners introduced the testimony of Richard Ogburn, a planning expert who has extensive experience with hurricane evacuation modeling in South Florida, including the Keys. Mr. Ogbu rn was directly involved in the Work Group hurricane evacuation modeling that culminated in the 2012 report and adoption of the MOUs. As Mr. Ogburn explained, Monroe County was the first local government in the state to update its hurricane evacuation mode ling based on the 2010 census data. It was to be a pilot for updating the statewide regional evacuation plan utilizing the new census data. 83 . Specifically, Mr. Ogburn, who was at the time employed by the South Florida Regional Planning Council, extracted demographic data from the 2010 census and created the demographic data base for use with the TIME model. Mr. Ogburn subsequently completed Ñvalidation runsÒ of the TIME model results generated by DEO staff during the Work Group process. 18 84 . In 2013, whi le Mr. Ogburn was working on the update to the statewide regional evacuation model, Mr. Ogburn discovered some blank cells within the census block group data sets in the original spreadsheet he had created for DEO. The missing information was the number of vehicles identified within those specific census block groups. With respect to Monroe County, eight of the 76 block groups were missing vehicle data. 85 . Mr. Ogburn found an alternative data source from which to derive the number of vehicles in the assoc iated census block groups and reran the model for purposes of updating the statewide regional model. In 2014, Mr. Ogburn reported the census data errors to DEO, which requested he rerun scenario M5 after including the missing vehicles. The result was a n in crease of two - 18 The validation process involved input o f the data parameters into the model and repeating the same model run scenarios to ensure that the results from the initial runs were replicated. and - a - half hours for evacuation of Phase II Ð a total clearance time of 26.5 hours. 86 . Mr. Ogburn testified that, based on the best - available data on hurricane evacuation clearance times, the evacuation of site - built dwellings in the Keys alr eady exceeds the 24 - hour evacuation standard mandate by statute (and incorporated into Respondents Ô comprehensive plans). In his opinion, adding units authorized by the Housing Initiative would further exacerbate the problem. 87 . Petitioners introduced oth er evidence aimed at tearing down the conclusion of the Work Group that the Keys could be safely evacuated in under 24 hours, based on the 2012 TIME model runs. For example, Mr. Ogburn questioned the vacancy rates utilized by the Work Group, which he described as Ñmost likelyÒ too high. Mr. Ogburn cast doubt on the 100% participation rate assumption, and the assumed 12 - hour response curve, which he testified was unrealistic given that people will not leave at the same rate if the evacuation is ordered at mi dnight as they would if the order was given at 7:00 a.m. Petitioners likewise introduced evidence casting doubt on the ability of meteorologists to predict storms with accuracy 48 hours in advance of landfall. 88 . The Keys local government comprehensive pl ans, as adopted with use of the TIME model, and all underlying assumptions and inputs, have previously been determined to be Ñin compliance.Ò The question of whether those assumptions and model inputs are supported by data and analysis is not properly befo re the undersigned in this proceeding. The evidence was, for the most part, irrelevant. 19 89 . The Housing Initiative is grounded on the availability of evacuation time in Phase I of the agreed evacuation procedure, which is adopted in each of the local gove rnment comprehensive plans. Mr. Ogburn agreed on cross - 19 Moreover, the evidence served to undercut PetitionersÔ argument that the best available data and analysis s upports the 24 - hour evacuation clearance time cap. examination, that the TIME model was run separately for Phase I and Phase II, that the results from Phase I were not taken into consideration in the data for Phase II, and that if the units ar e presume d to evacuate in Phase I, it would have no effect on the analysis for Phase II. 90 . Notably, when Mr. Ogburn was asked directly whether the additional 1,300 units added to permanent population would cause the Keys evacuation time to exceed 24 hours, Mr. O gburn testified: If the evacuation takes place ahead of time, itÔs a different question and I donÔt have a clear answer for that because I have not had the opportunity to run the model to determine whether or not that would cause the clearance times in the original phase to increase significantly. [ 20 ] 91 . The 2012 run of the TIME model demonstrated a clearance time in Phase I of 16 hours and 30 minutes, or 17 hours and 30 minutes, depending on the transient occupancy rate utilized. 92 . Respondents introduc ed the testimony of Joaquin Vargas, a traffic engineering consultant who was accepted as an expert in transportation planning, including roadway capacity issues related to hurricane evacuation. Mr. Vargas participated in hurricane evacuation modeling in th e Keys in the 1990s to determine potential roadway improvements that could reduce Keys evacuation clearance time. Mr. Vargas was the principal author of the ÑMiller Model,Ò which was utilized in these studies. 93 . Mr. VargasÔ modeling was not based on a tw o - phased evacuation. Instead, the Miller Model assumed evacuation of all permanent population simultaneously in order to identify where roadway improvements would reduce the evacuation clearance time. 9 4 . Mr. Vargas introduced the results of a model run o f simultaneous evacuation of the Keys without units authorized under the Housing Initiative, and a second adding 300 units each for Marathon, Islamorada, and 20 T2:79 ; 1 - 6 . Key West. The model run without the 900 combined units yielded an evacuation clearance time of 21 hours and 34 minutes. With the additional 9 00 units, the model yielded a clearance time of 21 hours and 42 minutes. 9 5 . This evidence had little relevance because the models are not comparable, and because Mr. Vargas utilized inputs and assumptions that differed greatly from the TIME model runs underlying the carrying capacity analysis utilized by the Work Group. The Miller Model assumes the evacuation of all permanent residents (including mobile home residents) simultaneously, so it is useless as a compara tor to the Phase II run of the TIME model. Additionally, Mr. Vargas utilized 2000 census data, rather than the more recent 2010 data, which Mr. Vargas admitted Ñw[ould] provide more accurate information,Ò and included inaccu rate data, such as non - existent lane segments which inflated capacity on some roadway segments. While Mr. Vargas expressed the opinion that the Miller Model is superior because it was designed expressly for the Keys, the fact remains that the existing Ñin complianceÒ comprehensive plans are based on use of the TIME model to determine maximum buildout in the Keys. 9 6 . Mr. Ogburn completed a run of the TIME model in 2014 which included the previously - missing vehicles from the census block groups in Phase I. That rerun produced a clearance time of 19 hours. The best available data and analysis (the 2014 rerun) supports a finding that the clearance time for Phase I, without the additional units fro m the Housing Initiative, is 19 hours. Thus, the evidence does not support a finding that the ev acuation of Phase I with the additional 1,300 units cannot be completed within the first 24 hours of a 48 - hour evacuation scenario. 9 7 . The preponderance of the evidence does not support a finding that the inclusion of the 1,300 units in Phase I will viola te the requirement to evacuate Keys permanent residents in 24 hours or less. 9 8 . On the theory that the addition of up to 1,300 residential units in the Keys will cause the hurricane evacuation clearance time to exceed 24 hours, Petitioners alleged the Pla n Amendments are inconsistent with the following provisions of RespondentsÔ comprehensive plans: Marathon : ? FLU Objective 1 - 2.1, which requires Marathon to Ñensure the availability of adequate public facilities and services[.]Ò ? FLU Objective 1 - 2.2, requirin g Marathon to Ñ meet the required 24 - hour hurricane evacuation time or other applicable state standard for hurricane evacuation.Ò ? FLU Objective 1 - 3.5, requiring Marathon to Ñmanage the rate of new development to ... support safe and timely evacuation prior to a hurricane.Ò ? Conservation and Coastal Element Policy 4 - 1.21.2, requiring Marathon to coordinate with Monroe County in updating policy formulations regarding land use a nd emergency preparedness and to plan for future land use densities that will not adv ersely impact the efficiency of hurricane evacuations or increase evacuation times. ? Intergovernmental Coordination Element (ÑICEÒ) Objective 5 - 1.1, requiring Marathon to maintain coordination mechanisms with the comprehensive plans of Monroe County and adj acent municipalities. ? ICE Policy 5 - 1.1.2, requiring Marathon to coordinate with adjacent jurisdictions Ñfor the development of joint strategies to address development , zoning, and land - use decisions that transcend jurisdictional boundaries.Ò ? ICE Policy 5 - 1 .1.10, requiring Marathon to establish a program to provide and review proposed plan amendments of adjacent local governments to ensure consistency. ? Policy 5 - 1. 2 .1 ( j ) , requiring Marathon to enter into interlocal agreements or develop joint resolutions in a reas of mutual concern, including the coordination of hurricane evacuation plans. Islamorada : ? FLU Goal 1 - 1, which provides that the comprehensive plan shall Ñ [e]ncourage[] sustainability by limiting growth in order to establish and maintain acceptable leve ls of se rvice for hurricane evacuation[.] Ò ? Transportation Element (ÑTEÒ) Policy 2 - 1.2.8, which requires Islamorada to Ñaddress long - term strategies to reduce clearance time and coordinate permit allocations Ò by implementing specifically - listed programs wit h FDOT, FDCA , and other local governments in the Keys. ? TE Policy 2 - 1.2.9, which provides for the staged/phased evacuation procedure to maintain a 24 - hour hurricane evacuation clearance time. ? TE Policy 2 - 1.2.10, which requires Islamorada to Ñsupport state funding for the update of the hurricane evacuation model that considers the impact of Miami - Dade County on evacuees[.] Ò ? TE Policy 2 - 1.6.3 , by which Islamorada Ñadopts 24 hours as the maximum allowable hurricane evacuation clearance time standard,Ò and provi des that Ñ[t] he Village shall reduce and maintain hurricane evacuation clearance time at or below 24 hours by È limiting the annual allocation of permits È as determined by interlocal agreement with the affected local governments in the Keys and the [DEO]. Ò ? Coastal Management Element (ÑCMEÒ) Objective 5 - 1.9 , requiring Islamorada to Ñavoid population concentrations in the coastal high hazard area.Ò ? CME Policy 5 - 1.10.2, requiring Islamorada to Ñcoordinate with Monroe County in emergency preparedness.Ò ? CME Objective 5 - 1.15, requiring Islamorada to Ñensure intergovernmental coordination within the coastal area.Ò ? ICE Objective 8 - 1.1, requiring Islamorada to Ñensure intergovernmental coordination.Ò ? ICE Policy 8 - 1.2.1, titled ÑCoordinate D evelopment and Growth M ana gement I ssues.Ò ? ICE Policy 8 - 1.2.8, titled ÑImplement Intergovernmental C oordination.Ò Key West : ? FLU Objective 1 - 1.16, requiring Key West to Ñr egulate the rate of population growth commensurate with planned increases in evacuation capacity in order to main tain and improve hurric ane evacuation clearance times[,]Ò and Ñi n concert with Monroe County, its municipalities, and the State of Florida, [Key West] shall manage the rate of growth in order to maintain an evacuation clearance time of 24 hours for permane nt residents.Ò ? CME Goal 5 - 1 , ÑP rotect human life and limit public expenditures in areas subject to de struction by natural disasters[.] Ò ? CME Objective 5 - 1.6, requiring Key West to Ñc oordinate with the State, the South Florida Regional Planning Council , [Mon roe] County, and other local governments in order t o regulate population growth and stage evacuations in a manner that maintains hurricane evacuation clearance times in acco rdance with the executed [MOU][.] Ò ? ICE Policy 8 - 1.1.3, which reads, in pertinent pa rt, as follows: Considering the growth and development limitations in Monroe County as a whole resulting from hurricane evacuation requirements È and considering the impact that growth and development in the City of Key West will have on the rest of Monroe County, [Key West] shall coordinate with Monroe County and the Cities È regarding the allocation of additional development. * * * The City shall pursue resolution of development and growth management issues with impacts transcending the [Key WestÔs] political jurisdiction. Issues of regional and state significance shall be coordinated with the [SFRPC], the [SFWMD], and/or State agencies having jurisdictional authority. Issues to be pursued include but are not limited to the following: [Key West] shall implement the hurricane and transportation conclusions and policies relative to residential unitsÔ allocation which are adopted by Monroe County and all municipalities as describ ed in the [MOU] dated July 14, 2012. 99 . Petitioners did not prove that the Marath on Plan Amendment is internally inconsistent with Objectives 1 - 2.1, 1 - 2.2, 1 - 3.5, and 5 - 1.1; and Policies 4 - 1.21.2, 5 - 1.1.(2), 5 - 1.1.10, and 5 - 1.2 . 1. j. 100 . Petitioners did not prove the Islamorada Plan Amendment is inconsistent with Islamorada Comprehensi ve Plan Goal 1 - 1 ; Policies 2 - 1.2.8, 2 - 1.2.9, 2 - 1.2.10, and 2 - 1.6.3 ; Objective 5 - 1.9 and Policy 5 - 1.10.2 ; Objective 5 - 1.15 ; and Objective 8 - 1.1 and Policies 8 - 1.2.1 and 8 - 1.2.8. 10 1 . Petitioners did not prove the Key West Plan Amendment is internally inconsistent with Key West Comprehensive Plan Objectives 1 - 1.16, 5 - 1.6, Goal 5 - 1, and Policy 8 - 1.1.3. 102 . Based on the foregoing Findings of Fact, Petitioners did not prove that the Marathon and Islamorada Plan Amendments are inconsistent with section 380.0552( 9)(a)2., which requires the local governments in the ACSC to adopt goals, objectives, and policies to Ñmaintain a hurricane evacuation clearance time for permanent residents of no more than 24 hours.Ò Environmental Concerns 103 . Petitioners next contend th e Plan Amendments are not supported by data and analysis demonstrating that the environmental carrying capacity of the Keys can support development of an additional 1,300 residential units. PetitionersÔ concerns fall into two categories which were the focu s of the FKCCS: nearshore water quality and ecological impacts. Nearshore Water Quality of the Florida Keys 10 4 . Petitioners claim that the nearshore water quality of the Keys was determined over 25 years ago to have exceeded its capacity to assimilate additional nutrients, that it remains nutrient - impaired today, and that the additional development authorized under the Plan Amendments will further increase nutrient pollution from additional wastewater and stormwater associated with development. 10 5 . In 19 90, Congress created the Florida Keys National Marine Sanctuary ( Ñ FKNMS Ò), and required development of a Water Quality Protection Program (ÑWQPPÒ) , establishing comprehensive, long - term monitoring of water quality in the FKNMS. Under the Water Quality Monitoring Project (ÑWQMPÒ) , water quality has been monitored quarterly at approximately 150 sampling stations since 1995 . 10 6 . In 1997, the Governor and Cabinet approved the FKNMS Management Plan for implementation in state waters, and required annual report s from the FKNMS. 10 7 . The 2011 FKNMS annual report stated that, Ñin general, water quality is good Sanctuary - wide but documentation of elevated nitrate in the inshore waters of the Keys has been evident sinceÒ sampling began in 1995. The report notes, ÑO bservance of this type È implies an inshore source which is diluted by low nutrient ocean waters,Ò and that Ñ[a]nalysis of monitoring data from 1995 through 2008 indicates a statistically significant improvement in some parameters, such as dissolved inorga nic nitrogen ÈÒ The report concludes that Ñthis trend will be watched closely in the future, particularly with regard to any potential effect attributable to È water treatment infrastructure improvements.Ò The report further cited Ñ[e]xcessive nutrients fr om inadequately treated wastewaterÒ as the Ñprimary contributor to water quality degradation in near shore waters.Ò 10 8 . In 2008, the Environmental Protection Agency (ÑEPAÒ) developed Strategic Targets for the WQMP, setting limits for DIN (dissolved inorga nic nitrogen) at < 0.010 parts per million (ÑppmÒ), and TP (total phosphorous) at < 0.0077 ppm, among other nutrients, which are considered the values Ñessential to promote coral growth and overall health.Ò Future sampling was compared to the ÑbaselineÒ f rom the 1995 - 2005 timeframe (e.g., the baseline for DIN was 76.3 percent Ð the average percentage the samples complied with the target of < 0.010 ppm). In 2011, FKNMS added 10 sampling stations, located within 500 meters of the shore in the Keys, referred t o in the reports as the SHORE stations. 10 9 . In 2015, FKNMS reported that an average of all stations (excluding SHORE stations) met or exceeded the target value for DIN in 2008 through 2011, but fell short of the target in 2012 through 2015. The stations r eported meeting or exceeding the target for TP in 2011 through 2015, while falling short in 2008 and 2010. The 2017 annual report showed the stations meeting or exceeding the DIN target in 2017, but not 2016; and meeting or exceeding the TP target in both 2016 and 2017. The 2017 study reported that Ñthe FKNMS exhibited very good water quality with median concentrations ofÒ TP at .0058, well below the target of .008. In 2018, FKNMS reported the stations meeting or exceeding the target for both nutrients. Aga in, in 2018, FKNMS reported Ñvery good water quality with median concentrations ofÒ TP at .0051, lower than the 2017 level, and again well below the EPA target. 110 . In summary, the reports demonstrate the stations fell below the target for TP in 2008 and 2010, but met or exceeded the target every year since 2010. The samples fell below the target for DIN in 2012 through 2016, but met or exceeded the target value in subsequent years. 111 . Petitioners emphasize that the EPAÔs Strategic Targets for nutrients in the FKNMS are not consistently being met. But the reports do show a trend of improvement, at least with respect to DIN and TP. 112 . The 2014 report documented elevated nutrient concentrations of DIN and TP in waters close to shore along the Keys, attrib utable to Ñhuman impact.Ò 113 . The 2015, 2017, and 2018 reports exclude the data from the SHORE stations for purposes of demonstrating compliance with target values because they Ñintroduce a bias to the dataset which results in a reporting problem[.]Ò 21 114 . The 2017 report does include an analysis of the geographic differences between testing stations. The report indicates a significant difference between the median levels of nutrients sampled in SHORE stations when compared with the Ñalongshore,Ò Ñchann el,Ò and ÑreefÒ stations. However, the median levels of many of the nutrients are still at or below the EPA targets, even measured at SHORE stations. For example, the median level of TP, which the report recognizes as one of the most important determinants of local ecosystem health, at the SHORE stations was just below .007, compared to the EPA target of .008. 115 . More importantly, Petitioners focus on the SHORE station data was inconsistent with their challenge that the nearshore water quality remains imp aired. Petitioners Ô planning expert, Ms. Jetton, defined nearshore as approximately 12,000 meters from shore , not merely within 500 meters of 21 Petitioners sought to introduce raw sample data from SHORE stations and an analysis of said data by Kathleen McKee. That evidence was admitted as hearsay only, and was not corroborated by an y non - hearsay evidence. shore . The 2017 report breaks out the ÑalongshoreÒ stations as well as the SHORE stations. That data shows the med ian value of TP at the alongshore stations is approximately .0055, well below the target of .008. Notably, 75 percent of the alongshore stations sampled TP below the target .008. With respect to DIN, the median of alongshore station samples is below the ta rget of .01; and 75 percent fall below .015. 116 . In 2018, FKNMS reported a trend of increased DO (dissolved oxygen) in both surface and bottom waters throughout the Keys, and declining turbidity in the surface waters, for the 24 - year period from 1995 thro ugh 2018. Increased DO is beneficial for animal life. Declining turbidity means the water is becoming clearer. The 2014 report showed no significant trends in TP, but the 2018 report noted small, but significant, declining trends in TP values in most surfa ce waters. 22 117 . In 1995, the EPA and the Department of Environmental Protection (Ñ DEP Ò) listed the Keys waters as Ñimpaired,Ò pursuant to the Clean Water Act. 23 DEP is required to establish Total Maximum Daily Loads (ÑTMDLsÒ) for impaired water bodies, wh ich define the maximum pollutant loading that can be discharged to those water bodies while still achieving water quality targets. An alternative mechanism, a Reasonable Assurance Document (ÑRADÒ) can be developed in lieu of TMDL s when, as in the Keys, loc al management activities are planned to achieve water quality targets. 118 . The Florida Keys RADs (ÑFKRADsÒ) were developed in 2008, and each of the affected local governments became a signatory to a StakeholderÔs Agreement to implement the FKRADs. The FKR ADs established two sets of nutrient targets: (1) an insignificant increase in concentration above natural background within the HALO zone, which is 500 meters of shore, not including canals; and (2) the average of values measured at the nearshore 22 The 2018 report does not contain the same detailed comparison of SHORE station samples with the other stations, as did the 2017 report. 23 33 U.S.C. § 1251 et seq . (500 meters to 12,100 meters from the sho reline). The FKRADs identify 23 impaired estuarine water body identifications (ÑWBIDsÒ). The WBIDs are Class III water bodies, defined by the Clean Water Act as Ñused for recreation, propagation, and maintenance of a health y, well - balanced population of fish and wildlife.Ò The FKRAD identifies specific restoration projects to be completed by 2020 to improve each WBID, designates the government stakeholder responsible for each project, and sets water quality targets to be ach ieved by each project. 119 . The FKRAD focuses on TN (total nitrogen) and TP, and establishes different water quality target values than the FKNMS. For the HALO Zone the target is an Ñas insignificant increase above natural background for each nutrient. Ò ÑI nsignificantÒ is defined as less than ten micrograms per liter (<10 µg/l) of TN, and < 2µg/l for TP. 1 2 0 . PetitionerÔs planning expert, Ms. Jetton, testified that the 2018 Update to the FKRAD Ñtells me that the surface water still isnÔt able to assimilate all the nutrients that are going into it because È weÔre not meeting the strategic targets[.]Ò Ms. Jetton concluded, based on the 2018 Update to the FKRAD , that Ñthere should be no more development added to [the Keys] until the [WBIDs] can consistently mee t their strategic targets.Ò She further testified that the RAD documents identify the KeysÔ waters as not meeting the DEP necessary levels of nutrients for healthy waters and that the RADs reflect Ñcurrent water quality as itÔs been affected by the wastewa ter facilities that have been upgraded in the Keys to date.Ò 1 2 1 . That testimony is unreliable. The purpose of the 2018 Update is plainly set forth in the document itself: to document actions taken by stakeholders since 2011 and to address the DO impairmen t identified by DEP is some water segments; to include a revised approach to monitoring and reporting results; and to identify a schedule to meet water quality targets and restoration goals. 1 2 2 . The 2018 Update to the FKRAD contains n either data on sampl es of TN and TP in the HALO zone waters, nor any analysis of whether the target Ð insignificant increases above natural background Ð has been achieved. The 2018 Update provides that Ñwater quality data will be compared to the FKRAD water quality targets È to e valuate achievement of targets,Ò and that Ñ[m]onitoring for success will include , among other data sets, Ñdecrease in nearshore nutrient concentrations in comparison to water quality targets and OFW background concentrations.Ò Injection Wells and Nearshor e Water Quality 1 2 3 . Absent concrete evidence to support PetitionersÔ claim that the nearshore waters have not recovered from their 1995 impaired designation such that they can assimilate pollutants from additional development, Petitioners argue that the e xisting ÑimprovedÒ wastewater and stormwater treatment infrastructure in the Keys does not adequately protect marine and coastal resources of the Keys, and that the addition of new development will exacerbate the problem. Specifically, Petitioners posit th at shallow wastewater injection wells degrade nearshore water quality. 1 2 4 . Marathon injects treated wastewater effluent into shallow injection wells, which are drilled to a depth of at least 90 feet and cased to a minimum depth of 60 feet. 1 2 5 . MarathonÔs five injection wells are permitted to, and currently operate at, a permitted capacity of .200 millio n gallons per day (ÑMGDÒ), .400 MGD, .200 MGD, .500 MGD, and .450 MGD, respectively. MarathonÔs injection wells are designed and permitted to exceed full b uild out. 1 2 6 . Key West injects its treated wastewater effluent into deep injection wells, which are 3,000 feet deep and are cased to a minimum depth of 2,000 feet. 24 24 Petitioners concede that deep injection wells have no quantifie d impact on the water quality of the nearshore waters of Key West or the Florida Keys. 1 2 7 . Key WestÔs injection wells are permitted at a capacity of 10 MGD, and Key West curre ntly uses approximately 50 percent or less of the total permitted capacity for its injection wells. 1 2 8 . Islamorada does not have its own municipal wastewater effluent injection wells or wastewater treatment plant. IslamoradaÔs wastewater is transmitted to the Key Largo Regional Wastewater Treatment Facility (ÑKey Largo Wastewater Treatment FacilityÒ), which treats and injects effluent into a deep injection well that is cased to a minimum depth of 2,000 feet. 1 2 9 . The Key Largo Wastewater Treatment Facilit y is permitted by DEP and operates at a permitted capacity of 2 MGD. The injection wells at the Key Largo Wastewater Treatment facility are designed and permitted to exceed full build out. 1 3 0 . Ms. Jetton testified that, based on reports she has reviewed, when you inject effluent into shallow injection wells, that water will reach the surface water Ñwithin a few hours or a few days.Ò She referenced numerous scientific reports which were admitted in evidence as sources on which she based her opinions. She fu rther referred to findings in the Administration CommissionÔs 1995 Final Order that deep water injection wells are a better form of treatment than shallow injections wells. Finally, Ms. Jetton pointed to the 2014 and 2017 FKNMS reports as evidence that sha llow well injections may contribute to nutrients in nearshore waters. 1 3 1 . The excerpt of the 2014 report introduced in evidence contains no reference to a relationship between shallow injection wells and the water quality of nearshore waters. The 2017 rep ort menti ons there may be a connection. 1 3 2 . Respondents introduced the testimony of Michael C. Alfieri, who is a licensed professional geologist, certified by the National Groundwater Association as a ground water professional, and certified by the Americ an Institute of Hydrology as a professional registered hydrogeologist. Mr. AlfieriÔs main practice in Florida is in karst hydrogeology, and he is one of the authors of the definitive text in Florida on karstology. 1 3 3 . Mr. Alfieri testified that the subsur face conditions in Marathon, as shown in the core samples and boring logs he personally reviewed, indicate the presence of aquitards 25 and semi - confining materials, including calcite calcrete with clay silt, which would significantly inhibit vertical migrat ion of injectate into surface water adjacent to MarathonÔs shallow injection wells. 26 1 3 4 . Based on his knowledge and experience, Mr. Alfieri testified that treated wastewater or stormwater injected down a shallow injection well does not rise to the surface in the nearshore waters surrounding the Keys. He further explained that once treated effluent is injected into either a deep or shallow well, it undergoes geochemical reactions as it interacts with , and is absorbed by , the surrounding rock, which reduces nutrient concentration. 1 3 5 . Mr. Alfieri testified that based on the advanced wastewater treatment facilities and injection wells used by Respondents, the depths of the injection wells and their current level of usage, as well as the surrounding geological features, including the confining layers, which are horizontally transmissive, the additional residential units authorized by the Plan Amendments would have no impact on nearshore waters of the Florida Keys. 1 3 6 . The undersigned finds Mr. AlfieriÔs testim ony more persuasive and reliable than Ms. JettonÔs recounting of studies undertaken by other professionals. 1 3 7 . On the theory that injected treated effluent contaminates the nearshore waters of the Keys, Petitioners allege the Plan Amendment s 25 Aquitards are materials that have a low potential to transmit water. Clay is the best material to serve as an aquitard given that it has high porosity and low permeabi lity which makes it difficult for water to move through. 26 The parties stipulated that deep injection wells Ñdo not have a quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys.Ò render Respondent s Ô comprehensive plans internally inconsistent with the following policies, respectively: Marathon ? Infrastructure Element (ÑIEÒ) Goal 3 - 1: Ñ[E]nsure availability of needed public facilities associated with wastewater disposal È in a manner that is env ironmentally sound and protects marine environments, including sea grass beds and nearshore waters[.] Ò ? IE Goal 3 - 2: Ñ [Marathon] shall provide for environmentally È sound treatment and disposal of sewage, which meets the needs of È residents, while ensurin g the protection of public health and the maintenance and protection of ground, nearshor e and offshore, water quality[.] Ò ? IE Objective 3 - 2.2: Ñ [Marathon] shall regulate land use and development to È protect the functions of natural drainage features and g roundwater from the impacts of wastewater systems.Ò Islamorada ? FLU Goal 1 - 1 , which provides in pertinent part, as follows : The comprehensive Plan shall provide a growth management framework that È encourages sustainability by limiting growth in order to establish and maintain acceptable levels of service for È wastewater services È and È reclaim and preserve the quality of [IslamoradaÔs] natural resources È [r] elies on ecological constraints to establish limits for growth È to ensure that human induced activities do not diminish assets of our unique coastal environment; and provides a sound basis for developing land use controls that È protect coastal resources, including nearshore waters, wetlands, grassbed flats, mangrovesÈ and establish a basi s for managi ng È water quality[.] ? CE Goal 6 - 1: ÑIslamorada È shall conserve, manage, use and protect the natural and environmental resources È based on their carrying capacity limitations to ensure continued resource availability and environmental quality. Ò ? CE Objective 6 - 1.9: ÑIslamorada È shall provide requirements designed to protect fisheries, wildlife and wildlife habitat from the adverse impacts of development by regulating the location, density and intensity of those activities that cause the adverse impact. Ò Ke y West ? FLU Goal 1 - 1: ÑMinimize Threats To Health, Safety, And Welfare Which May Be Caused By Incompatible Land Uses, Environmental Degradation [.] Ò 27 ? CME Goal 5 - 1: ÑCoastal Management. Restrict development activities that would damage or destroy coastal re sources. Protect human life and limit public expenditures in areas subject to destruction by natural disasters [ . ] Ò ? CME Objective 5 - 1.1: ÑProtect Coastal Resources, Wetlands, Estuarine Salt Pond Environmental Quality, Living Marine Resources, And Wildlife Habitats. È (1) Preventing potentially adverse impacts of development and redevelopment on wetlands, estuaries, water resources, living marine resources, and other natural resources; (2) Maintaining or improving coastal environmental quality by improving s tormwat er management[.] Ò 27 Petitioners inaccurately cite the monitoring measure attributable to Objective 1 - 1.16 as if it relates to Goal 1 - 1. The Monitoring Measure attributable to Objective 1 - 1.16 is ÑNumber of building permits allocated annually in accordance with the implementing policies.Ò ? CME Policy 5 - 1.1.4: ÑProtect Living Marine Resources, Coast al Marsh, and Seagrass Beds È [Key West] shall seek to enhance seagrass beds and coastal nontidal wetland habitats[.]Ò ? CME Policy 5 - 1.2.2: Ñ [Key West] shall continue to lim it the specific and cumulative impacts of development and redevelopment upon water quality and quantity, wildlife habitat, and living marine resources by enforcing performance standards cited herein. Wastewater system improvements shall also be carried out to reduce potential adverse impacts on the coral reef. In amending its land development regulations , the City shall consider the establishment of additional protective policies for coral.Ò ? CME Policy 5 - 1.4.1: ÑPublic Investments in Coastal High - Hazard Are a. Publicly funded facilities shall not be built in the Coastal High - Hazard Area, unless the facility is for the protection of the public health and safety.Ò ? CE Objective 6 - 1.2: ÑDetrimental water quality impacts, including adverse impacts to the coral ree f system shall continue to be combated by public facility improvements identified in the Public Facilities Element È. Monitoring Measure: Achievement of water quality È standards.Ò 1 3 8 . RespondentsÔ wastewater treatment plants are in compliance with their DEP wastewater treatment plant and injection well permits. 13 9 . Furthermore, there have been no violations of the permits for RespondentsÔ wastewater treatment facilities that could potentially impair nearshore water quality. 1 4 0 . As a condition precedent to issuing permits for RespondentsÔ injection wells, DEP required Respondents to provide reasonable assurance that the operation of the wells will not cause or contribute to a violation of surface water quality standards and will not harm environmental re sources. 1 4 1 . Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with the Marathon Comprehensive Plan Goal 3 - 1, Goal 3 - 2, and Objective 3.2.2. 1 4 2 . Petitioners did not prove the Islamorada Plan Amendment is internally in consistent with Islamorada Co mprehensive Plan Goal 1 - 1, Goal 6 - 1, and Objective 6 - 1.9. 1 4 3 . Petitioners did not prove the Key West Plan Amendment is internally inconsistent with Key We st Comprehensive Plan Goals 1 - 1 and 5 - 1 ; Objective 5 - 1.1 and Policies 5 - 1.1.4, 5 - 1.2.2, and 5 - 1.4.1; and Objective 6 - 1.2. Ecological Impacts 1 4 4 . Petitioners maintain the Plan Amendments are not supported by the best available data on the ecological carrying capacity of the Keys with regard to habitat protection. 1 4 5 . The FK CCS recommended four guidelines for future development in the Keys: (1) prevent encroachment into native habitat; (2) continue and intensify existing programs (e.g., land acquisition, wastewater treatment); (3) focus future growth on redevelopment and infi ll; and (4) increase efforts to manage the resources. 1 4 6 . Since the FKCCS was published in 2002, the local governments in the ACSC have completed numerous work programs designed to implement the recommendations, including updating habitat mapping, maximiz ing grant funding for land acquisition, and acquiring environmentally - sensitive lands to remove them from potential development. 1 4 7 . Furthermore, the BPAS system integrates environmental concerns when scoring applications for the units allocated. In Marat hon, Policy 1 - 3.5.4 affords the greatest weight to applications for development of scarified and infill lots with existing paved roads, water, and electric service. The Plan affords the least weight to applications on lots containing sensitive areas as identified on the vegetation and species maps. Further, the Marathon plan provides that, Ñin no case shall more than one (1) BPAS allocation per year be issued for properties which in part or whole designated as Hardwood Hammock, Palm Hammock, Cactus Hammock, or Beach/Berm.Ò 1 4 8 . The Key West comprehensive plan mandates that new development preserve, at a minimum, Ñall wetlands and ninety (90) percent of hardwood hammocks.Ò The Key West plan does not allow development in any wetlands Ñexcept where State and/or federal agencies having jurisdiction provide for development rights.Ò 1 4 9 . The Islamorada comprehensive plan mandates that new development preserve Ñall undisturbed wetlandsÒ and 90 percent of high quality tropical hardwood hammocks on the parcel being de veloped. The Islamorada comprehensive plan also discourages development of lots containing both disturbed and undisturbed habitats by applying the most stringent open space requirements to development sites containing the highest quality habitats. For exam ple, the minimum open space requirement for high quality hammock is .90; while for undisturbed saltmarsh and buttonwood wetlands, as well as undisturbed mangrove and freshwater wetlands, the ratio is 1.0. The plan requires an open space ratio of .90 for di sturbed saltmarsh and buttonwood wetlands, as well as disturbed mangrove and freshwater wetlands. 1 5 0 . Nevertheless, Petitioners argue that the Plan Amendments allow new units t o be built in disturbed hammock, which constitutes additional encroachment int o hammock, contrary to the FKCCS. Petitioners point to the provision of the Plan Amendments which provides that the workforce affordable units Ñ shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock, [ 28 ] or fresh water wetlands (disturbed categories excepted)[.] Ò 28 The Islamorada Pl an Amendment refers to Ñ tropical Ò hardwood hammock. 1 5 1 . The provisions of the Plan Amendments must be read together with existing comprehensive plan provisions. When read together, the Marathon comprehensive plan may not allow any of the affordable - early e vacuation units to be built on any hammock habitat because it only allows one BPAS permit per year be allocated to any parcel containing designated hardwood hammock. Since the Plan Amendment requires the units be built as multifamily, thereby utilizing mul tiple allocations for one application, it is impossible to permit the new affordable units on any lot designated hardwood hammock. 1 5 2 . Further, the Marathon BPAS weighting system will apply to the new allocations, 29 which will continue to direct developm ent to scarified lots, and those lots with maximum disturbed areas. The Islamorada plan open space requirements will apply to disincentiv ize development of parcels with high quality hammock, buttonwood wetlands, and freshwater wetlands, by requiring the mo st stringent open space ratios. 1 5 3 . Petitioners did not prove the Plan Amendments are not based on data and analysis of the ecological carrying capacity of the Keys. 15 4 . Petitioners allege that the Plan Amendments are internally inconsistent with the fol lowing provisions of the Marathon and Islamorada plans relating to ecological concerns: Islamorada : ? GOAL 1 - 1: I MPLEMENT FUTURE LAND USE VISION , which reads, in pertinent part, as follows: [ Islamorada was] incorporated to create a Comprehensive Plan to rec laim the Keys by conserving, preserving, and retaining our remarkable assets Ð our waters and natural environment Ð and our quality of life; Encourages sustainability by limiting growth in order to È reclaim and preserve the quality of our natural 29 Only the Key West Plan Amendment exempts the allocation of the affordable - early evacuation units from the BPAS. resources; Relies on ecological constraints to establish limits for growth and create standards and criteria to ensure that human induced activities do not diminish assets of our unique coastal environment[.] ? Policy 2 - 1.9.3: Participate in the Florida Keys Carrying C apacity Study. È Ñ [Islamorada] shall conti nue to support the technical undertakings of this study, and the establishment of carrying capacity limitations for the Florida Keys. Ò ? Goal 6 - 1: Ñ Islamorada È shall conserve, manage, use and protect the natural and environmental resources È based on their carrying capacity limitations to ensure continued resource availability and environmental quality. Ò ? Policy 6 - 1.4.4: Ñ Islamorada È shall use the best available technical criteria and information to formulate regulat ions and ordinances which shall ensure that future development is compatible with the functioning and carrying capacity of existing natural systems and resources conservation. Ò Marathon ? Objective 1 - 2.1 : which calls for adequate public facilities and servi ces for future growth Ñto È protect valuable natural resourcesÈ.Ò 1 5 5 . Petitioners did not prove the Marathon Plan Amendment is internally inconsistent with Objective 1 - 2.1. 1 5 6 . Petitioners did not prove the Islamorada Plan Amendment is internally inconsi stent with Goal 1 - 1, Policy 2 - 1.9.3, Goal 6 - 1, and Policy 6 - 1.4.4. Other Contentions 1 5 7 . Petitioners alleged the Plan Amendments violate section 163.3177(6)(a)2., which reads, in pertinent part, as follows: 2. [P]lan amendments shall be based upon survey s, studies, and data regarding the area, as applicable , including: a. The amount of land required to accommodate anticipated growth. b. The projected permanent population of the area. c. The character of undeveloped land. d. The availability of water su pplies, public facilities, and services. e. The need for redevelopment, including renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. f. The compatibility of uses on lands adjace nt to or closely proximate to military installations. g. The compatibility of uses on lands adjacent to an airport[.] h. The discouragement of urban sprawl. i. The need for job creation, capital investment, and economic development that will strengthen and diversify the communityÔs economy. j. The need to modify land uses and development patterns with antiquated subdivisions. (emphasis added). 1 5 8 . Many of the listed criteria are not applicable to the Plan Amendments because the Plan Amendments do not propose a specific type of development at a specific location, do not implicate antiquated subdivisions, and do not specifically implicate redevelopment of blighted areas. 1 5 9 . Respondents considered the availability of water supplies and other public ser vices, such as the capacity of wastewater treatment facilities, during plan review and adoption. Respondents also considered the need of the service sector of the economy Ð including retail and restaurant services, as well as public school and first - responde r services Ð during plan review and adoption. 1 6 0 . Petitioners did not prove the Plan Amendments are not based upon applicable surveys, studies, and data as required by section 163.3177(6)(a)2. CONCLUSIONS OF LAW 1 6 1 . The Division of Administrative Hearings has jurisdiction over the subject matter and parties hereto pursuant to s ections 120.569, 120.57(1), and 163.3184(5), Florida Statutes (2019). 1 6 2 . To have standing to challenge or support a plan amendment, a person must be an Ñaffected person,Ò as define d in section 163.3184(1)(a). 1 6 3 . Petitioners are all Ñaffected personsÒ with standing to bring this action pursuant to 163.3184(1)(a). 1 6 4 . ÑIn complianceÒ means Ñconsist ent 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.Ò § 163.3184(1)(b), Fla. Stat. 1 6 5 . Respondent sÔ determination s that the Plan Amendment s are Ñin complianceÒ are presumed to be correct and must be sustained if the determination s of compliance are fairly debatable. See § 163.3184(5)(c), Fla. Stat. 1 6 6 . ÑThe Ófairly debatableÔ rule is a rule of reason ableness; it answers the question of whether, upon the evidence presented to the [government] body, the [governmentÔs] action was reasonably - based.Ò Lee Cty. v. Sunbelt Equities, II, Ltd. PÔship , 619 So. 2d 996, 1002 (Fla. 2d DCA 1993) (citing Town of Indi alantic v. Nance , 400 So. 2d 37, 39 (Fla. 5th DCA 1981)). 1 6 7 . The mere existence of contravening evidence is not sufficient to establish that a land planning decision is Ñfairly debatable.Ò It is firmly established that: [E]ven though there was expert tes timony adduced in support of the CityÔs case, that in and of itself does not mean the issue is fairly debatable. If it did, every zoning case would be fairly debatable and the City would prevail simply by submitting an expert who testified favorably to the CityÔs position. Of course that is not the case. The trial judge still must determine the weight and credibility factors to be attributed to the experts. Here the final judgment shows that the judge did not assign much weight or credibility to the CityÔs witnesses. Boca Raton v. Boca Villas Corp ., 371 So. 2d 154, 159 (Fla. 4th DCA 1979). 1 6 8 . The standard of proof to establish a finding of fact is preponderance of the evidence. See § 120.57(1)(j), Fla. Stat. The MOU 1 6 9 . Petitioners allege, as grounds fo r finding the Plan Amendments not Ñin compliance,Ò that the Plan Amendments are inconsistent with the MOU. PetitionersÔ allegations of inconsistency with the MOU are not well taken. Only those specific items listed in the statutory definition of Ñin compli anceÒ may form the basis for finding the Plan Amendments not Ñin compliance.Ò See Consol . Citrus v. Martin Cty ., Case No. 13 - 3393 (Fla. DOAH Jan. 23, 2013, Order on RespondentÔs Mot. in Lim. or in the Alter. Mot. to Strike) (whether plan amendment is consi stent with section s 163.3162, 193.461, 823.14 , Florida Statutes, and Florida Administrative Code Rules 62B - 33 and 40E - 8 are not compliance issues); Cemex Constr. Materials Fla. v. Lee Cty ., Case No. 10 - 2988 (Fla. DOAH Feb. 21, 2012; Fla. DCA Apr. 10, 2012) (whether plan amendment is consistent with section 337.0261(3) , Florida Statutes, is not a compliance criterion); Monkus v. City of Miami , Case No. 04 - 1080 (Fla. DOAH Sept. 3, 2004; Fla. DCA Oct. 26, 2004) (consistency with land development regulations is not a compliance issue); Emerald Lakes ResidentsÔ AssÔn v. Collier Cty. , Case No. 02 - 3090 (Fla. DOAH Feb. 10, 2003; Fla. DCA May 8, 2003) (whether plan amendment was adopted in conformity with procedural requirements of section 163.3185(15)(c) is not a co mpliance issue); Current v. Town of Jupiter , Case No. 03 - 0718 (Fla. DOAH Oct. 24, 2003; Fla. DCA Apr. 9, 2004) (whether plan amendment conflicts with local government resolution is not a compliance issue); Durham Park Neighborhood v. City of Miami , Case No . 06 - 0759 (Fla. DOAH May 24, 2006 Order Granting Leave to Amend but Striking Portions of Amended Pet.) (striking PetitionersÔ claims that plan amendment is not consistent with Florida Administrative Code Rule 9J - 11 because the provisions are not compliance criteria); and Pyle v. City of St. Pete Beach , Case No. 08 - 4772 (Fla. DOAH Jan. 28, 2009, Order on Mot. to Strike) (requirement to submit a ÑcompleteÒ plan amendment package pursuant to section 163.32456 is not a compliance issue). 1 7 0 . If the MOU was ad opted by reference in Respondents Ô comprehensive plans, PetitionersÔ argument might have had merit . However, none of the comprehensive plans adopts the MOU by reference. The MOU is a separate stand - alone document which may be amended by agreement of the pa rties, outside of the statutory plan amendment process. Internal Inconsistences 1 7 1 . Section 163.3177(2) mandates Ñthe several elements of the comprehensive plan shall be consistent.Ò 1 7 2 . Petitioners did not prove, beyond fair debate, that the Plan Amendments are inconsistent with specifically - identified provisions of RespondentÔs plans relating to hurricane evacuation clearance times, quality of nearshore waters, wastewater treatment, or habitat protection. 1 7 3 . Petitioners did not prove beyond fair deba te that the Plan Amendments are inconsistent with section 163.3177(2). Data and Analysis 1 7 4. Section 163.3177(1)(f) requires plan amendments to be Ñbased upon relevant and appropriate data and analysisÒ by the local government, and includes Ñsurveys, stud ies, community goals and vision, and other data available at the time of adoption.Ò 1 7 5 . To be based on data Ñmeans 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 ad option of the plan amendment.Ò § 163.3177(1)(f), Fla. Stat. 1 7 6 . Based upon the foregoing Findings of Fact, Petitioners did not prove the Plan Amendments are not supported by adequate data and analysis, or fail to react to professionally - acceptable data in an appropriate way. 1 7 7 . Petitioners did not prove beyond fair debate that the Plan Amendments are inconsistent with section 163.3177(1)(f). Principles for Guiding Development 1 7 8 . ÑIn complianceÒ is defined to include consistency with the Principles, which apply to both Marathon and Islamorada. 30 Petitioners alleged the Plan Amendments are inconsistent with section 380.005(9), which requires plan amendments comply with the requirement to Ñmaintain[] a hurricane evacuation clearance time for permanent r esidents of no more than 24 hours.Ò Based on the foregoing Findings of Fact, it is at least fairly debatable that the Plan Amendments will not cause evacuation clearance time of the ACSC to exceed the 24 - hour evacuation clearance time. 1 7 9 . Furthermore, t he Principles Ñmay not be construed or applied in isolation,Ò but must be Ñconstrued as a whole.Ò £ 380.0552(7), Fla. Stat. The undersigned is required to balance the Principles as applied to PetitionersÔ challenges. One of the other major Principles impli cated by the Marathon and Islamorada Plan Amendments is to Ñ[m]ake[] available adequate affordable housing for all sectors of the population of the Florida Keys.Ò § 380.0552(7)(l), Fla. Stat. The parties stipulated to the need for affordable housing, which has a documented impact on the KeysÔ economy. The need to 30 The Principles for Guiding Development in the Key West ACSC make no reference to hurric ane evacuation clearance times. See Fla. Admin. Code R. 28 - 36.003. house the workforce for the service sector of the KeysÔ economy implicates another Principle: to ensure Ñthe maximum well - being of the Florida Keys and its citizens through sound economic developm ent.Ò £ 380.0552(7)(d), Fla. Stat. 1 8 0 . With regard to Key West, Petitioners urge the Plan Amendment is inconsistent with Florida Administrative Code Rule 28 - 36.003(1)(a), (h), and (2)(a)7., which require plan amendments to Ñ[s]trengthen local government capabilities for managing land use and development Ò ; Ñ[p]rotect È the public health, safety, welfare, and economy of the City of Key West, and [maintain] Key West as a unique Florida Resource Ò ; and adopt an Ñevacuation plan consistent with regional and [M onroe] County plans È which provides an opportunity for residents and visitors to evacuate to a place of safety during a natural disaster,Ò respectively. 1 8 1 . Based upon the foregoing Findings of Fact, Petitioners did not prove beyond fair debate that th e Key West Plan Amendment is inconsistent with the listed Principles. Other Contentions 1 8 2 . Petitioners raised additional arguments, which were likewise not proven beyond fair debate. 1 8 3 . Petitioners alleged the Plan Amendments violate section 163.3177( 6)(a)2., which requires consideration of specifically - listed types of data and analysis for adoption of plan amendments. Respondents considered the availability of water supplies and other public services during plan review and adoption. Respondents also c onsidered the need of the service sector of the economy Ð including retail and restaurant services, as well as public school and first - responder services Ð during plan review and adoption. 1 8 4. Based on the foregoing Findings of Fact, Petitioners did not prove , beyond fair debate, that the Plan Amendments are inconsistent with section 163.3177(6)(a)2. 1 8 5 . Petitioners contend the Plan Amendments were inconsistent with section 163.3177(6)(a) 8 ., which requires, as follows: 8. Future land use map amendments shall be based upon the following analysis: a. An analysis of the availability of facilities and services . b. An analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natur al resources , and historic resources on site. (emphasis added). 1 8 6 . The cited statutory section is inapplicable to the Plan Amendments because they are not future land use map amendments. Conclusion 1 8 7 . For the reasons stated above, Petitioners have no t proven beyond fair debate that the Plan Amendment is not Ñ in compliance ,Ò as that term is defined in section 163.3184(1)(a). RECOMMENDATION 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 the City of Marathon Comprehensive Plan Amendment 2018 - 01, adopted on October 23 , 2018 ; City of Key West Comprehensive Plan Amendment 19 - 06, adopted on April 4, 2019; and Islamorada, Village of Islands, Comprehensive Plan Amendment 19 - 03, adopted on March 5, 2019; are Ñin compliance,Ò as that term is defined in section 163.31 84(1)(b) . D ONE A ND ENTERED this 2 4th day of April , 2020 , in Tallahassee, Leon County, Florida. S S UZANNE V AN W YK 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 2 4th day of April , 2020 . COPIES FURNISHED : Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street Pompano Beach , Florida 33060 (eServed) Shai Ozery, Esquire Robert N. Hartsell P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) Barton William Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Christop her B. Deem, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Nicola J. Pappas, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 6511 Nova Drive Davie, Florida 33317 (eServed) Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 Key West, Florida 33040 (eServed) George B. Wallace, Esquire City of Key West, City Attorney's Offic e 1300 White Street Post Office Box 1409 Key West, Florida 33040 (eServed) Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 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) William Chorba, Gene ral Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399 - 4128 (eServed) NOTICE OF RIGHT T O 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.

Docket for Case No: 18-006250GM

Orders for Case No: 18-006250GM