The Honorable Gerald Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32301

Nevin G. Smith, Esquire Secretary, Department of

Administration

Room 530, Carlton Building Tallahassee, Florida 32301

Roger G. Saberson, Esquire

110 East Atlantic Avenue Delray Beach, Florida 33444

Board of County Commissioners Post Office Box 1989

West Palm Beach, Florida

W. James Tait, Jr., Esquire Director of Planning and Budgeting Office of the Governor

The Capitol

Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMISSION

IN RE: D.R.I. APPEAL OF

FOX PROPERTIES, PALM BEACH Case No. 77-846DRI (DOAH) COUNTY. Case No. 74-18 (FLWAC)

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FINAL ORDER

This case came before the Land and Water Adjudicatory Commission for final determination on May 6, 1980, in Tallahassee. Oral arguments were presented by Roger G. Saberson on behalf of Treasure Coast Regional Planning Council and Jon

C. Moyle on behalf of the respondent, Maurice Fox. Mr. Fox as well as various interested citizens also provided public comment.

STATEMENT OF THE CASE

This appeal is brought pursuant to Chapter 380, Florida Statutes, from a Development Order issued by the Palm Beach County Board of County Commissioners on September 3, 1974. The order was appealed to the Land and Water Adjudicatory Commission by the South Florida Regional Planning Council. The Developer, Mr.

Fox, challenged the timeliness of the appeal through a motion to dismiss. The

First District Court of Appeal found the appeal to be timely. Fox v South Florida Regional Planning Council, 327 So.2d 56 (1 DCA Fla. 1976), cert. den.

336 So.2d 1181 (Fla. 1976). On May 13, 1977 the Land and Water Adjudicatory Commission referred the matter to the Division of Administrative Hearings for appropriate proceedings.

Palm Beach County, having resigned from the South Florida Regional Planning Council, became a member of the Treasure Coast Regional Planning Council (T.C.R.P.C.). Treasure Coast was allowed to intervene by order dated September 20, 1977. Final hearing in the case was held on March 20 through March 31, 1973 in West Palm Beach, Florida, at which time a substantial record of testimony and exhibits was compiled.

The Hearing Officer issued his Findings of Fact, Conclusions of Law and Recommended Order on November 20, 1978. The Hearing Officer recommended that the development order issued by Palm Beach County be set aside.

The matter was brought before the Land and Water Adjudicatory Commission on February 29, 1979. Following oral presentations, the Commission by majority vote remanded the case to the hearing officer for "the purpose of providing further clarification of the alternatives that would make the project eligible for development under Section 380.08(3), F.S."

Remand proceedings were conducted on August 6 through August 9, 1979.

Supplemental Findings of Fact, Conclusions of Law and Recommended Order were submitted by the Hearing Officer on February 29, 1980.

ORDER

1. The Hearing Officer's Findings of Fact, dated November 20, 1978, except for the legal conclusion contained in the last line of paragraph 6 on page 14 which states: " . . . and would not have been relevant" are hereby adopted and incorporated by reference herein.

   
   

2. The Hearing Officer's Supplemental Findings of Fact, dated February 29, 1980, are hereby adopted and incorporated by reference herein.

   
   

3. The Hearing Officer's Conclusions of Law, dated November 29, 1978, are hereby adopted and incorporated by reference herein except as follows:

   
   

   1. The following language on page 15 is stricken: "In this case, the question presented is whether the proposed development is consistent with the recommendation of the Regional Planning Council in view of the effect that the development will have upon the environment and natural resources of the region.

      
      

   2. All of paragraph 5 on pages 15 and 16 is rejected and the following language is substituted: The issue presented in any case involving a development of regional impact is one of balancing. Balancing of the impacts requires that the beneficial regional aspects of the Fox project are to be weighed against the detrimental regional impact that encompasses the loss of these particular wetland areas.

      
      

4. The Hearing Officer's Supplemental Conclusions of Law, numbered 1 and 2 on pages 7 and 8, dated February 29, 1980 are hereby adopted and incorporated by reference herein.

5. The last sentence of the Hearing Officer's Supplemental Conclusion of Law Number 2, dated February 29, 1980 is rejected because acceptable parameters for the development can be drawn from the evidence so as to preserve significant wetland attributes of the property.

   
   

6. The Hearing Officer's Supplemental Conclusions of Law, numbered 3 and 4, dated February 29, 1980 are hereby rejected. This case does not turn on a taking issue or upon the Estuary decision for reasons which are set forth in the following language which is to be substituted: Any development, almost by definition, has a negative impact on the environment and a development on the scale that Mr. Fox proposes has the potential of a negative impact on the entire region. It was for this reason that the Legislature enacted the Land and Water Management Act of 1972. There is evidence that the Legislative intent behind the Act was not outright preservation but rather to provide a process to reflect on and balance beneficial and negative impacts of a regional nature that would be associated with large scale development.

   
   

   The primary benefit the development would offer is a proposed Center for Geriatric Medicine. Weighing against the beneficial impact of the proposed development is the obliteration of the wetland values, the foremost of which is the wildlife habitat. While there are, no doubt, those who would claim that this is not sufficient in and of itself to overcome the beneficial impact of any proposed development, this attitude fails to recognize the importance of wildlife and wildlife habitats to the quality of life and economy of both the region and the state. Wildlife and wetlands are natural resources of this state which are protected both by statute and the Florida Constitution. The supreme significance of the wet land values is reflected both by the findings and the record and is further buttressed by the fact that perhaps more than one half of those wetlands which previously existed in Florida have been drained. The Geriatric Center and a pleasant living environment for the elderly is also very important as reflected in our findings. Nonetheless, if these particular wetlands are obliterated, which is a virtual certainty under this proposal, they are gone for all time. While we have found that the Geriatric Center may come to fruition with appropriate planning, there is absolutely no condition which we could attach at this time which would absolutely guarantee its eventual existence.

   
   

   In balancing the competing policies involved in this case, and designating the area for preservation shown on the overlay to T.C.R.P.C. Exhibits 18, 19 and 20, which is incorporated by reference herein, this Commission has sought to attain the benefit of the development also by attaching conditions to the center for Geriatric Medicine, and to preserve a significant portion of the environmental values of this site. This is based on the premise that such an adjustment can be achieved. If this Commission could not preserve at least the area referred to above, it would be confronted with a policy choice between the development as proposed and the preservation of the wetland values of the site as we have found, in which event this Commission would choose preservation of the wetland values and limitations of development to this "Area Suitable for Under Development" shown on T.C.R.P.C. Exhibit 107.

   
   

   Ideally, a balancing of the positive and negative regional impacts should provide for a compromise or conditions which will accommodate both the best of the positive while reducing the worst of the negative. What we come down to in this case, is how do we allow Mr. Fox to reasonably develop his property with the geriatric center and yet, at the same time, preserve as much as possible of the wetland values? It is uncontroverted in this record that the wildlife sought to be protected are extremely reclusive and do not flourish surrounded by

   human residential areas. Additionally, it is uncontroverted that adjoining wetlands augment the value of other wetland areas. Based on these findings it is clear that the most valuable wetland areas that we preserve must be continguous and adjacent to the Palm Beach Water Catchment Area. By requiring Mr. Fox to preserve and maintain this area in its natural state, we are not unmindful of the language of Section 380.08(1). Our condition does not constitute an unreasonable restriction or taking under that section.

   
   

   Because of the following conditions and based on this record and on the Findings of Fact we therefore find that a balancing of all the evidence allows the proposed development.

   
   

7. The Hearing Officer's recommendation contained in the February 29, 1980 Supplemental Order is accepted and we hereby affirm the Development Order issued by the Board of County Commissioners of Palm Beach County and conditions attached thereto, subject to the following additional conditions:

   
   

   1. Prior to any site preparation and/or initiation of development as defined in Chapter 380, Florida Statutes, for the area north of Okeechobee Road, the developer shall provide a feasibility study for the Center for Geriatric Medicine as contemplated in the Statement of Use Justification. Such a feasibility study shall, as a minimum, involve an evaluation of financeability, economic feasibility and permittability of each of the elements proposed in the ADA (page 220) to be included in the Center and a detailed phasing analysis as to when each of these elements could be functioning, and the financial requirements for each element and phase. In the event said study is unfavorable this Development Order shall immediately become null and void.

      
      

   2. Prior to any site preparation and/or initiation development as defined in Chapter 380, Florida Statutes, for the area north of Okeechobee Road, the developer shall donate to a nonprofit corporation registered in the State of Florida the forty (40) acres of land designated on the site plan for the Center for Geriatric Medicine. This condition which shall be recorded in the county courthouse shall be considered a convenant to run with the land in the event this Development Order is implemented and shall be enforceable against the developer and his successors in title or interest pursuant to the provisions of Section 380.11, Florida Statutes.

      
      

   3. Prior to any site preparation and/or initiation of development as defined in Chapter 380, Florida Statutes, for the area north of Okeechobee Road, the developer shall spend or donate to the nonprofit corporation the sum of two million dollars ($2,000,000.00) for the purposes of the Center for Geriatric Medicine. This condition which shall be recorded in the county courthouse shall be considered a covenant to run with the land in the event the Development Order is implemented and shall be enforceable against the developer and his successors in title or interest pursuant to the provisions of Section 330.11, Florida Statutes.

      
      

   4. In the event this Development Order is implemented and the purposes of the Center for Geriatric Medicine as set forth in the ADA and/or Findings of Fact contained herein have not been initiated and substantially fulfilled, then the forty (40) acres of land and any funds remaining from the two million (2,000,000.00) dollars shall revert to the State of Florida in the year 2000. This condition of reverter shall be accomplished by appropriate instruments binding developer, his successors in title or interest or the nonprofit corporation referenced in conditions b and above and shall be recorded in the county courthouse.

   5. The developer shall preserve and maintain in its natural state the area depicted on the overlay to T.C.R.P.C.'s Exhibits 18, 19 and 20 which is incorporated herein. In the event said property is not for any reason preserved and maintained in its natural state this Development Order shall immediately become null and void.

      
      

8. a. The exceptions of both parties to the Recommended Order dated November 20, 1978 are rejected to the extent they are inconsistent with the findings and conclusions contained in this Order.

1. T.C.R.P.C.'s objection to the exceptions filed by Fox is granted and the exceptions are stricken to the extent that they raise issues not in litigation.

   
   

2. T.C.R.P.C.'s exceptions to the Supplemental Order dated February 29, 1980 are rejected as being either immaterial in light of the conclusions by this Commission, not at issue, or otherwise appropriately dealt with in this Order. However, T.C.R.P.C.'s Exception No. 5 is specifically granted but the matter is immaterial in light of our Order. The Fox exceptions to the Supplemental Order dated February 29, 1930 are rejected as being immaterial in light of the conclusions by this Commission or not supported by the evidence of record. Exception No. 2 is specifically rejected as being an incorrect statement of law and Exception No. 4 is stricken as raising issues not in litigation.

Entered at Tallahassee, Florida by the Florida Land and Water Adjudicatory Commission through the Secretary to the Commission this 27th day of May, 1980.

JIM TAIT

Secretary to the Land and Water Adjudicatory Commission

COPIES FURNISHED:

Members of the Commission Counsel of Record

Board of County Commissioners, Palm Beach County

Department of Community Affairs, Bureau of Land and Water Management

Docket for Case No: 77-000846

Orders for Case No: 77-000846