judith e. koonsVs.david j. russ|Department of Community Affa... -- eLawyers

Judges: ROBERT E. MEALE
Agency: Department of Community Affairs
Latest Update: Jun. 02, 1989
Summary: Plan inconsistent as to wetlands drainage and flooplain.

88-6338

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

OMEGA AUSTIN, BEATRICE HOUSTON, ) and MARY DORN, )

)

Petitioners, )

)

vs. ) CASE NO. 88-6338GM

) DEPARTMENT OF COMMUNITY AFFAIRS ) and CITY OF COCOA, )

)

Respondents. )

) DAVID P. HENDRY, SR. and )

LOULA P. HENDRY, )

)

Petitioners, )

)

vs. ) CASE NO. 89-0291GM

) DEPARTMENT OF COMMUNITY AFFAIRS ) and CITY OF COCOA, )

)

Respondents. )

)

TABLE OF CONTENTS TO RECOMMENDED ORDER

SECTION PAGE

BACKGROUND 4

FINDINGS OF FACT 7

Parties 7
Preparation of Proposed Plan 8
Transmittal of Proposed Plan to DCA 13
Proposed Plan: Goals, Objectives, and Policies 14
1. General 14
2. Future Land Use Element and Map 15
3. Housing Element 17
4. Public Facilities Element 17
5. Coastal Management Element 20
6. Conservation Element 20
7. Recreation and Open Space Element 22
8. Capital Improvements Element 23
9. Monitoring and Evaluation 24

V. Proposed Plan: Background Analysis		25
A. Future Land Use Element and Map		25
B. Public Facilities Element		26
C. Recreation and Open Space Element		31
D. Conservation Element		31
E. Coastal Management Element		31
VI. Objections, Recommendations, and Comments of	DCA	33
A. Findings of Other Agencies		33
B. Findings of DCA		36
1. General		36
2. Future Land Use Element and Map		38
3. Housing Element		41
4. Public Facilities Element		42
5. Coastal Management Element		43
6. Conservation Element		44
7. Capital Improvements Element		44
8. Miscellaneous		45
VII. Review of ORC and Adoption of Plan		45
A. Review of ORC		45
B. Adoption Hearings		54
VIII. The Contents of the Plan		57
A. General		57
B. Goals, Objectives, and Policies		57
1. Future Land Use Element and Map		58
2. Housing Element		60
3. Public Facilities Element		60
4. Coastal Management Element		63
5. Conservation Element		64
6. Recreation and Open Space Element		64
7. Capital Improvements Element		65
C. Evaluation and Appraisal Report		65
D. Miscellaneous		67
E. Background Analysis		68
1. Future Land Use Element and Map		68
2. Housing Element		69
3. Drainage Subelement		69
4. Capital Improvements Element		70
5. Coastal Management Element		70
6. Miscellaneous		70
IX. Determination of Compliance by DCA		71
X. Ultimate Findings as to Public Participation		71
XI. Ultimate Findings as to Consistency		73
A. Drainage, Wetlands, and Floodplains		73
1. Internal Consistency		73
2. Consistency with the Regional Plan		80
3. Consistency with the State Plan		82
B. Historic Resources		83
1. Internal Consistency		83
2. Consistency with the Regional Plan		84
3. Consistency with the State Plan		86
C. Redevelopment Plan		86

CONCLUSIONS OF LAW 86

Jurisdiction 86
Standing 88
The Act 91
1. Public Participation 91
2. Elements Required of All Plans 94
  1. General 94
  2. Future Land Use Element and Map 96
  3. Public Facilities Element 97
  4. Conservation Element 99
  5. Housing Element 100
  6. Capital Improvements Element 100
  7. Coastal Management Element 101
  8. Miscellaneous Elements 104
3. Determination of Noncompliance 105
  1. General 105
  2. Wetlands, Drainage, and Floodplains 106
  3. Historic Resources 108
  4. Remedial Action 108

RECOMMENDATION 108

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

OMEGA AUSTIN, BEATRICE HOUSTON, ) and MARY DORN, )

)

Petitioners, )

)

vs. ) CASE NO. 88-6338GM

) DEPARTMENT OF COMMUNITY AFFAIRS ) and CITY OF COCOA, )

)

Respondents. )

) DAVID P. HENDRY, SR. and )

LOULA P. HENDRY, )

)

Petitioners, )

)

vs. ) CASE NO. 89-0291GM

) DEPARTMENT OF COMMUNITY AFFAIRS ) and CITY OF COCOA, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled cases, which were consolidated for hearing, was held on April 17-21 and 25-27 and May 3, 1989, in Cocoa, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows: For Petitioners,

Austin, Houston,

and Dorn: Judith E. Koons Attorney at Law

Central Florida Legal Services, Inc. 1149 Lake Drive, Suite 201

Cocoa, Florida 32922

For Petitioners,

Hendry: David P. Hendry, pro se

17 Riverside Drive, #2 Cocoa, Florida 32922

For Respondent, Department of

Community Affairs: David J. Russ, Senior Attorney

Rhoda P. Glasco, Senior Attorney Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent,

City of Cocoa: Bradly Roger Bettin

Amari, Theriac, Roberts & Runyons

96 Willard Street, Suite 302 Cocoa, Florida 32922

Petitioners Austin, Houston, and Dorn offered into evidence 53 exhibits and called 12 witnesses: John Wood, Rochelle Lawandales, Yale Rabin, Louis Tesar, Terry Manning, Omega Austin, Jeffrey Jones, Aaron Dowling, Valerie Brown, Lester Campbell, George Henderson, and Roni McNeil. Petitioners Hendry offered into evidence four exhibits and called two witnesses: David P. Hendry, Sr., and Noah ("Sonny") Butt.

Respondent Department of Community Affairs offered into evidence four exhibits and called three witnesses: Robert Nave, Paul Noll, and Terry Manning. Respondent City of Cocoa offered into evidence nine exhibits and called five witnesses: Richard Amari, Linda Knudsen, Clyde Allen, Rochelle Lawandales, and Dollye Robinson.

Five sets of audio tapes were admitted into evidence as Hearing Officer Exhibits 1-5. The tapes are recordings of three workshops conducted jointly by the Cocoa City Council and Cocoa Planning and Zoning Board in September, 1988, and two public hearings of the Cocoa City Council that took place on September

27 and October 4, 1989.

All exhibits were admitted into evidence except Austin Exhibits 24 and 52. The objections to Austin Exhibit 24 are overruled at this time, and the exhibit is admitted.

The entire testimony of Mr. Butt was excluded because it was cumulative.

In light of the ruling contained herein as to the standing of Petitioners Hendry, the testimony of Mr. Butt was also irrelevant.

Respondents objected to certain testimony and exhibits concerning the issue of public participation on the grounds that such evidence was irrelevant and beyond the scope of the subject hearing. These objections were conditionally overruled. Respondents also objected to certain testimony of Petitioners Austin, Houston, and Dorn that was proffered to show that their substantial interests were affected by alleged deficiencies concerning the extent of public participation. This testimony was excluded because it was offered after Petitioners Austin, Houston, and Dorn had rested and did not qualify as rebuttal.

In light of the ruling contained herein that the public participation issue may be raised in a Section 163.3184(9) proceeding, the objections to the testimony and exhibits concerning public participation are now unconditionally overruled, and the proffered testimony of Petitioners Austin, Houston, and Dorn is excluded on the additional basis that it is irrelevant.

No transcript was ordered. Each party filed a proposed recommended order.

Treatment accorded the proposed findings is detailed in the appendix.

BACKGROUND

On May 1, 1988, the City of Cocoa filed with the Department of Community Affairs a proposed comprehensive plan. On August 5, 1988, the Department of Community Affairs transmitted to the City of Cocoa a report containing objections, recommendations, and comments concerning the proposed comprehensive plan.

On October 4, 1988, the City of Cocoa adopted a revised comprehensive plan and transmitted it to the Department of Community Affairs for review. On Saturday, November 26, 1988, the Department of Community Affairs published its Notice of Intent to Find the City of Cocoa Comprehensive Plan in Compliance.

On Monday, December 19, 1988, Petitioners Austin, Houston, and Dorn filed their Petition to Department of Community Affairs Challenging Compliance of Cocoa's Comprehensive Plan. The petition alleges that the Cocoa comprehensive plan is inconsistent with the State Comprehensive Plan; the Comprehensive Regional Policy Plan of the East Central Florida Regional Planning Council; Chapter 163, Part II, Florida Statutes; and Chapter 9J-5, Florida Administrative Code. In addition to allegations concerning the insufficiency of public participation, the petition focuses upon the effect of the failure to incorporate into the plan an earlier-adopted local redevelopment plan. As a consequence of this failure, the petition alleges that the plan insufficiently addresses the impact of proposed uplands development, such as a 400-slip marina, upon historic and natural resources.

On December 15, 1988, Petitioners Hendry filed with the Department of Community Affairs a letter dated December 5, 1988, challenging certain provisions of the Cocoa comprehensive plan. On December 21, 1988, the Department of Community Affairs entered an Order Dismissing the Petition to

Challenge the Cocoa Comprehensive Plan and Granting Leave to Amend the Petition. Pursuant to the Order, Petitioners timely filed more specific allegations in a letter dated January 5, 1989.

The amended petition alleges that the Cocoa comprehensive plan is not in compliance because of deficiencies in the Coastal Management, Public Facilities, and Capital Improvements Elements. The allegations focus upon the effects of development and redevelopment in the vicinity of the Indian River Lagoon.

In the Prehearing Stipulation filed April 11, 1989, Petitioners Austin, Houston, and Dorn assert that the preparation and adoption of the Cocoa comprehensive plan were inconsistent, procedurally and substantively, with Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.

Petitioners Austin, Houston, and Dorn claim that the plan is procedurally defective because the City of Cocoa failed to adopt as part of the plan the revisions prepared in response to the report of the Department of Community Affairs containing its objections, recommendations, and comments; disregarded statutory and regulatory requirements for public participation by refusing to respond to public comments and failing to make available to the public the plan and background data; and failed to submit required changes and additional material to the Department of Community Affairs following the adoption of the plan.

Petitioners Austin, Houston, and Dorn claim that the plan is substantively defective based on the exclusion from the comprehensive plan of the redevelopment plan, exclusion from the Coastal Management Element of a redevelopment component, and failure to describe in the plan requisite redevelopment programs, activities, and land development regulations.

Petitioners Austin, Houston, and Dorn claim that the goals, objectives, and policies of the plan relating to the development and redevelopment of the coastal area deviate from the requirements of Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code.

Petitioners Austin, Houston, and Dorn lastly contend that the Department of Community Affairs found 28 items in the finally adopted comprehensive plan to be inadequate, and the subsequent determination of compliance was based on an unauthorized and subjective balancing test.

Petitioners Hendry make similar assertions in the Prehearing Stipulation concerning the absence of public participation and the failure to incorporate the redevelopment plan into the comprehensive plan. Petitioners Hendry claim that the plan is internally inconsistent due to its failure to mitigate or eliminate the deleterious effects upon the Indian River Lagoon of stormwater and other pollutants, which the plan identifies as risks posed to the lagoon by higher densities proposed in the redevelopment area. Petitioners Hendry also claim that the plan is not a clear or concise document and that the Future Land Use Map in effect when the Department of Community Affairs determined the plan to be in compliance was unavailable to Petitioners.

FINDINGS OF FACT

Parties
1. Petitioners Austin, Houston, and Dorn all reside in the City of Cocoa (Cocoa or City).
2. Petitioners Hendry both reside in Cocoa.
3. The Department of Community Affairs (DCA) is the state land planning agency under the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (the Act).
4. Cocoa is located entirely within Brevard County, which is within the jurisdiction of the East Central Florida Regional Planning Council (the Regional Planning Council). The resident population of Cocoa is presently about 18,000 persons. The City encompasses over 4500 acres and abuts the Indian River, which is also identified as the Indian River Lagoon.
Preparation of Proposed Plan
1. By Ordinance 6-86, which was adopted on March 25, 1986, the Cocoa City Council designated the Cocoa Planning and Zoning Board as the local planning agency under the Act. The Planning and Zoning Board thereby became responsible for preparing the Cocoa comprehensive plan required by the Act (the Plan), conducting public hearings on the Plan, and recommending the Plan to City Council for adoption.
2. In February, 1987, Cocoa entered into a contract with the Regional Planning Council for assistance in preparing the Plan. Pursuant to the contract, the Regional Planning Council drafted all elements of the Plan except the Potable Water Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which CH2M Hill prepared; the Wastewater Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which Camp, Dresser and McKee prepared; and the Solid Waste Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which the City prepared.
3. On November 7, 1987, a 4 1/4" by 3" display advertisement in the Florida Today newspaper announced that Cocoa had begun to prepare an update of its comprehensive plan in conformance with the 1985 Local Government Comprehensive Planning and Land Development Act. The advertisement stated that the preparation of the update "will have the effect of regulating the use of lands within the municipal limits of the City of Cocoa." The advertisement advised that copies of documents prepared during the updating process would be on file in the City's Community Improvement Department. The advertisement added that the public would be informed of public meetings through the news media and bulletins posted at City Hall.
4. The Florida Today newspaper is a standard-sized newspaper of general paid circulation in Brevard County and of general interest and readership in Cocoa. The newspaper is published at least five times a week. All advertisements described herein appeared in the Florida Today newspaper and adequately identified the location of the advertised meeting or documents.
5. On November 17, 1987, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on November 18, 1987, at 5:15 p.m. for the purpose of discussing preliminary drafts of the Traffic Circulation and Recreation and Open Space Elements of the Plan. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department.
6. On November 18, 1987, the Planning and Zoning Board conducted a public hearing on the Traffic Circulation and Recreation and Open Space Elements.
7. On November 28, 1987, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on December 2, 1987, at 5:15 p.m. for the purpose of discussing preliminary drafts of the Housing and Conservation Elements of the Plan. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department.
8. On December 2, 1987, the Planning and Zoning Board conducted a public hearing on the Housing and Conservation Elements. There is some evidence to suggest that discussion of the Conservation Element was carried over to the next regularly scheduled meeting of the Planning and Zoning Board on December 9, 1987.
9. On January 9, 1988, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on January 13, 1988, at 5:15 p.m. for the purpose of discussing the Drainage Subelement of the Public Facilities Element and the Coastal Management Element. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department.
10. On January 13, 1988, the Planning and Zoning Board conducted a public hearing on the Drainage Subelement of the Public Facilities Element and the Coastal Management Element.
11. On February 25, 1988, a 1 1/4" by 5 3/4" classified-type advertisement announced meetings of the Planning and Zoning Board on March 9, 1988, at 5:15
  p.m. and the City Council on March 22, 1988, at 7:00 p.m. for the purpose of hearing all interested persons on the Future Land Use and Capital Improvements Elements of the Plan. The advertisement stated that copies of relevant documents could be obtained from the Community Improvement Department.
12. The record is unclear as to whether these meetings took place, although the Planning and Zoning Board met on March 23, 1988, and discussed the Future Land Use, Intergovernmental, and "Capital Facilities" Elements, as well as the "Sanitary Sewer" Subelement of the Public Facilities Element.
13. On March 28, 1988, a 4 1/4" by 3" display advertisement described the planning process in the same manner as did the November 7 display advertisement. The March 28 advertisement announced that the Planning and Zoning Board and City Council would hold joint workshops on March 29, 30, and 31, 1988, at 5:15 p.m. to discuss "public facilities, coastal management, housing, transportation, recreation and open space, intergovernmental coordination, capital improvement and future land use elements." The advertisement stated that copies of relevant documents could be obtained from the Community Improvement Department.
14. The record is unclear as to whether these meetings took place as scheduled, although, at minimum, it appears that the March 29 meeting took place.
15. On April 23, 1988, at 5:15 p.m., the Planning and Zoning Board commenced a special meeting with the following persons present: six members and the chairman of the Planning and Zoning Board, four members of the City Council and the Mayor, the City Manager and Assistant City Manager, the Community Improvement Administrator, a City planner, and four representatives of the Regional Planning Council. The purpose of the meeting was to consider the Future Land Use, Traffic Circulation, Housing, Public Facilities, Coastal Management, Conservation, Recreation and Open Space, Intergovernmental
  Coordination, and Capital Improvements Elements of the Plan. The Future Land Use Element was unavailable, so the City Council postponed the discussion of this element until a later date.
16. At the April 13 meeting, Rochelle Lawandales, the Community Improvement Administrator, stated that no formal action would be taken at the workshop, but that the Plan would go before the City Council on April 26, 1988, at 7:00 p.m. during a public hearing. At the conclusion of the April 26 hearing, the City Council would be expected to authorize staff to submit the Plan to DCA. The April 13 meeting was adjourned at 8:05 p.m.
17. On April 19, 1988, at 5:15 p.m., the Planning and Zoning Board began a special meeting with largely the same persons who attended the April 13 meeting. The purpose of the meeting was to discuss the Future Land Use Element and Future Land Use Map. The discussion culminated in the consensus that the Planning and Zoning Board would recommend that the City Council transmit the Plan to DCA.
  The meeting adjourned at 6:55 p.m.
Transmittal of Proposed Plan to DCA
1. On April 19, 1988, a 6 1/2" by 10 1/2" display advertisement with a large-type headline appeared on page 5 of Section B of the newspaper. The advertisement, which was in the form prescribed by Section 163.3184(15)(c), Florida Statutes, announced that the City Council proposed to change the use of land within the City and that on April 26, 1988, at 7:00 p.m. the City Council would conduct a public hearing on the Plan proposed to be sent to DCA (Proposed Plan). The advertisement contained a large map of Cocoa with major street names indicated, listed the nine major elements of the Proposed Plan, and advised that interested persons could submit written comments or attend the public hearing to be heard regarding the transmittal of the Proposed Plan to DCA. The advertisement stated that the City Council would not give final approval to changes proposed at the hearing, which was described as part of the process designed to lead to the eventual adoption of the Plan.
2. On April 26, 1988, the City Council conducted a public hearing. Following receipt of public comment, which was relatively limited, Mayor Dollye Robinson closed the public hearing, and the City Council unanimously approved Resolution No. 88-17, which authorizes the transmittal of the Proposed Plan to DCA.
3. On May 1, 1988, DCA received the City of Cocoa-- Comprehensive Plan, which consists of two volumes. Volume I is Background Analysis. Volume II is Goals, Objectives, and Policies. DCA also received a document containing population estimates for Cocoa and an Evaluation and Appraisal Report (EAR), dated April, 1988, assessing the performance of the Cocoa comprehensive plan adopted under the Local Government Comprehensive Planning Act of 1975. (The Proposed Plan and Plan are unrelated to the comprehensive plan assessed in the EAR.)
4. On May 8, 1988, a 4 1/4" by 3" display advertisement announced that the Proposed Plan and supporting documentation were available for review at the public library and city hall.
Proposed Plan: Goals, Objectives, and Policies
1. General
  1. The Act requires that each comprehensive plan contain eight or nine major elements: Capital Improvements; Future Land Use; Traffic Circulation; Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge (identified as the Public Facilities Element in the Proposed Plan and Plan); Conservation; Recreation and Open Space; Housing; Intergovernmental Coordination; and, if applicable, Coastal Management. Each element comprises goals, objectives, and policies, which respectively represent long-term ends, criteria by which progress toward the goals can be measured, and programs and activities by which the goals are to be achieved. The goals, objectives, and policies in the Proposed Plan are largely carried over to the Plan.
2. Future Land Use Element and Map
  1. The Proposed Plan contains two objectives under the Future Land Use Element. They are:
    
    Objective 1.1: Future growth and development will be managed through the preparation, adop- tion, implementation and enforcement of land development regulations.
    
    Objective 1.2: Future development and redevel- opment activities shall be directed in appro- priate areas as depicted on the Future Land Use Map, consistent with sound planning principles, minimal natural constraints, and the goals, objectives, and policies provided in the . . . Plan.
  2. Policy 1.1 of the Future Land Use Element provides in part: The City will adopt land development regula-
    tions that shall contain specific and detailed
    provisions required to implement the . . . Plan and which:
    * * *
    1. Regulate the use of land and water consis- tent with this element and ensure the compati- bility of adjacent land uses and provide for open space;
    2. Protect the wetland areas identified in the conservation element and future land use element;
    3. Regulate areas subject to seasonal and periodic flooding and provide for drainage and stormwater management;
      * * *
      H) Provide that development orders and permits shall not be issued which would result in a reduction of the adopted level of service standards.
  3. The Future Land Use Map, which is part of the Proposed Plan, depicts eight land use categories: low-, medium-, and high-density residential, commercial, industrial, institutional, open space and recreational, and activity
    center. Policy 1.2 specifies a maximum density of seven units per acre for low- density residential and 15 units per acre for medium-density residential.
  4. The Future Land Use Map in the Proposed Plan depicts four large parcels as open space. These are north of Michigan Avenue, just west of U.S. Route 1; south of Michigan Avenue, just west of U.S. Route 1; north and west of the intersection of Michigan Avenue and Range Road; and east of the north end of Range Road and west of the largest unincorporated enclave surrounded by the City.
  5. According to the two Existing Land Use Maps contained in the Background Analysis, which is described in Paragraphs 47-67 below, the four large parcels designated as open space on the Future Land Use Map are wetlands, except for a small strip that is probably a park and is described further in Paragraph 127 below. The four open spaces constitute nearly all of the existing wetlands in the City.
  6. Neither the Future Land Use Map in the Proposed Plan nor either of the Existing Land Use Maps in the Background Analysis depicts any historical resources.
3. Housing Element
  1. The Housing Element of the Proposed Plan contains the following provisions with respect to historic properties:
    
    Objective 3.1.4: Housing designated histori- cally significant will continue to be preserved and protected, and the quality of existing homes and neighborhoods will be maintained or improved.
    
    Policy 3.1.4.4: Assist owners of designated historically significant housing to apply for and utilize state and federal assistance programs.
    
    Policy 3.1.4.7: The City will aid in the identification of historically significant housing and structures.
4. Public Facilities Element
  1. The Public Facilities Element of the Proposed Plan provides the following level of service standards for drainage: design storm event--five year frequency/24-hour duration event; on-site stormwater management--retention of first one inch of rainfall runoff or, with respect to drainage areas under
    100 acres with under 80% impervious surface, retention of first one-half inch of runoff; stormwater quantity--no greater than pre-development stormwater runoff flow rates, quantities, peaks, and velocities; and stormwater quality--no degradation of existing water quality condition in receiving water bodies.
  2. The Drainage Subelement of the Public Facilities Element of the Proposed Plan contains seven objectives. Three of the objectives focus upon floodplains and wetlands:
    
    Objective 4.3.5: To reduce existing flooding problems and to prevent additional flooding problems from being created as a result of future development.
    
    Objective 4.3.6: To ensure the protection and preservation of existing wetlands as viable components of the City's surface water management systems, to include the establish- ment or maintenance of desirable hydroperiods, water quality conditions, and natural ecosystems.
    
    Objective 4.3.7: To ensure that proper and adequate surface water management facilities are provided in response to identified needs.
  3. Several policies under Objectives 4.3.5, 4.3.6, and 4.3.7 describe the data still needed by the City to determine its drainage needs and the means by which Cocoa intends to attain the overall goals of the subelement:
    
    Policy 4.3.2.5: Efforts will be undertaken to eliminate existing points of direct stormwater discharge into receiving surface waterbodies, where possible, based on the following procedure:
    1. engineering studies will be initiated for the purpose of identifying the comparative nonpoint pollution impacts of each direct discharge point, and determining relative priorities for corrective actions (or "retrofit" projects) to be undertaken, based on the extent of--
      
      --adverse impacts on entire receiving waterbody
      --system retrofitting required to eliminate or minimize the adverse impacts
      --projected benefits to be accomplished
      --overall implementation feasibility
    2. facility design studies will be initiated for those direct discharge points determined to have the highest priority.
    3. The estimated costs of individual corrective action projects will be included as components of the Capital Improvements Program.
    Policy 4.3.5.2: Drainage needs assessment investigations will be initiated for areas within the City which have been identified as
    experiencing flooding problems, for the purpose of identifying actions necessary to alleviate the problems.
    
    Policy 4.3.5.3: Based on the findings of the drainage needs assessment investigations, engineering studies will be initiated to develop solutions to the identified flooding problems, with the cost estimates being included in the Capital Improvements Program.
    
    Policy 4.3.6.1: Public infrastructure improvements that encourage the development of wetlands will be avoided except in the case of overriding public interest, with appropriate measures being taken to discourage development in affected wetland areas.
    
    Policy 4.3.6.2: The City will review its land development and zoning ordinances, regulations and standards with the intent being to remove any requirements which might encourage develop- ment in wetland areas.
    
    Policies 4.3.7.1 and 4.3.7.2 promise an inventory of Cocoa's surface water management system followed by an engineering study of the system components to identify the extent of excess or deficient surface water flow or storage capacity. The final policy in this subelement states:
    
    Policy 4.3.7.9: Flood control for new develop- ment will be accomplished through the limita- tion of fill in the 100-year floodplain. In cases where there are no alternatives to fill in the floodplain, compensatory storage for such fill will be provided through excavation in adjacent upland areas (above the 100-year floodplain) of a volume equivalent to the loss of storage within the 100-year floodplain resulting from the placement of fill, where such compensatory storage can be accomplished in an environmentally sound and economically feasible manner.
5. Coastal Management Element
  1. The Coastal Management Element of the Proposed Plan does not refer to coastal wetlands or historic resources. It does not contain any analysis of the effects on estuarine water quality of existing drainage systems and nonpoint source pollution such as that carried by stormwater runoff.
6. Conservation Element
  1. The Conservation Element of the Proposed Plan contains nine subelements. Several of these subelements contain objectives or policies addressing wetlands, floodplains, and stormwater drainage.
  2. The Vegetation and Wildlife Habitat Subelement of the Conservation Element provides:
    
    Policy 6.4.2: Areas of natural habitat within the 100 year floodplain shall be given priority consideration in the identification of lands which address passive recreational demand and open space objectives.
    
    Policy 6.4.3: In order to reduce the adverse consequences of floodplain development and simultaneously encourage the conservation of natural habitat, the City's Flood Damage Prevention ordinance shall be amended to discourage construction in the floodplain by requiring the provision of compensatory storage for fill placed within the floodplain.
    
    Policy 6.4.7: The City shall not approve any development which would significantly and adversely alter the ecological functions of freshwater wetlands or deepwater habitat.
    Ecological functions include: (a) provision of wildlife and fisheries habitat; (b) main- tenance of in-stream flows and lake levels during periods of high and/or low rainfall;
    (c) erosion control; and (d) water quality enhancement.
  3. The Fisheries and Estuarine Habitat Subelement of the Conservation Element provides:
    
    Objective 6.5: The City shall protect the ecological well being of the Indian River Lagoon from adverse activities or impacts, so as to maintain or enhance the abundance and diversity of estuarine habitat and species.
    
    Policy 6.5.2: The city shall establish site design standards and regulations for the control of stormwater runoff to insure the adequate treatment of stormwater from all new development or redevelopment prior to its discharge to surface waters.
    
    Policy 6.5.3: The City shall take steps to identify means for reducing the volume of untreated stormwater discharged to surface waters, and shall develop a program to take corrective action, to the greatest extent feasible.
  4. The Water Quality Protection Subelement of the Conservation Element contains similar provisions with respect to the control of stormwater runoff and development of corrective programs.
  5. The Floodplain Management Subelement of the Conservation Element states:
    
    Objective 6.8: The City shall protect the flood storage and conveyance functions of the
    100 year floodplain.
    
    Policy 6.8.1: In order to reduce the adverse consequences of floodplain development and simultaneously encourage the conservation of natural habitat, the City's Flood Damage Prevention ordinance shall be amended to discourage construction in the floodplain by requiring the provision of compensatory storage for fill placed within the floodplain.
    
    Policy 6.8.2: Developers shall be encouraged to incorporate those portions of sites which are within the 100 year floodplain as open space preservation.
    
    Policy 6.8.3: The City shall promote wetlands preservation and non-structural floodplain management by encouraging the use of isolated wetlands as detention areas, where such use is consistent with good engineering practice and does not significantly degrade the ecological value of wetlands. Pre-treatment of stormwater runoff by diversion of the "first flush" shall be required prior to discharge to wetland detention areas.
    
    Policy 6.8.4: The City shall encourage public and private agencies . . . in acquiring floodplains.
7. Recreation and Open Space Element
  1. The Recreation and Open Space Element of the Proposed Plan provides:
    
    Goal 7.2: Ensure the conservation of open space areas in the City to provide aesthe- tically pleasing buffer areas, to serve as wildlife habitats, to act as groundwater recharge areas, to give definition to the urban area, and to enhance and promote natural resources.
    
    Policy 7.2.1.2: Designate conservation areas within the City as part of the future land use map in order to preserve open space and fulfill objectives discussed in this element and the Conservation Element.
8. Capital Improvements Element
  1. The Capital Improvements Element of the Proposed Plan provides:
    
    Objective 9.1: The Capital Improvements Element will establish adopted levels of service for public facilities and capital improvement projects which the City will undertake. The Five-Year Schedule of Improvements will identify projects which
    a) meet existing deficiencies; b) provide repair or replacement of existing facilities; [and] c) accommodate desired future growth.
    
    Objective 9.2: All land use decisions which impact the Capital Improvements Element or Future Land Use Element will be coordinated by the City Manager, or his designee, in conjunction with the City's Planning and Zoning Board, and approved by City Council.
    
    Objective 9.3: Annual review of the Capital Improvements Element will be included in the City's budget process. As part of this review the Finance Department shall be responsible for: (1) addressing the fiscal impact of capital improvement projects on revenue and expenditures, and (2) updating the fiscal assessment section of the Capital Improvements Element.
    
    Objective 9.4: Public facility improvements that are needed to support new growth will maintain adopted levels of service. Improve- ments to public facilities which result from the impact of new development will require equitable cost participation by the developer.
    
    Policy 9.4.1: The City Manager shall initiate impact analysis of proposed development projects to determine the impact of the development on the City's fiscal operations and LOS [i.e., levels of service] for public facilities.
    
    Objective 9.5: The City will not approve development which requires public facility improvements that exceed the City's ability to provide these in accordance with the adopted LOS standards.
    
    Policy 9.5.1: Before a development is approved, the City Manager or his designee will determine that any needed public facility improvements do not exceed the City's funding capacity.
    
    Policy 9.5.2: Development approved prior to the adoption of this Plan which requires
    improvements to public facilities will be included in the Five-Year Schedule of Improvements with a funding priority designation.
  2. The Five-Year Schedule of Capital Improvements in the Proposed Plan includes only four projects: ongoing resurfacing and repair of roads, possible four-laning one specific road, expanding the wastewater treatment plant, and extensive, detailed work to the potable water system.
    
    I. Monitoring and Evaluation
  3. Provisions regarding Monitoring and Evaluation follow the goals, objectives, and policies in Volume II of the City of Cocoa--Comprehensive Plan. Concerning the public participation requirement, this section states in relevant part:
    
    In cases in which the proposed ordinance deals with more than five percent (5%) of the total land area of the municipality the council shall provide for public notice and hearings as follows:
    1. The council shall hold two (2) advertised public hearings on the proposed ordinance. Both hearings shall be held after 5:00 p.m. on a weekday and the first shall be held approxi- mately seven (7) days after the day that the first advertisement is published. The second hearing shall be held approximately two (2) weeks after the first hearing and shall be advertised approximately five (5) days prior to the public hearing. The day, time and place at which the second public hearing will be held shall be announced at the first public hearing.
    2. [This section is virtually identical to the language contained in Section 163.3184(15)(c), Florida Statutes.]
    3. [This section allows notice by mailing instead of advertising.]
    (Laws of Fla., Ch. 59-1186, Art. V, Section 9; Ord. No. 4-80, Section, [sic] 4-8-80)
Proposed Plan: Background Analysis
1. Future Land Use Element and Map
  1. The Future Land Use Element of the Background Analysis explains the purpose of the Future Land Use Map:
    
    The future location and distribution of land use are shown on the Future Land Use map.
    This map identifies appropriate types of land
    uses if all vacant land were to be utilized within the ten year planning horizon. Once the Future Land Use map is adopted, all development regulations in effect subsequent to its adoption must be consistent with it. Land development regulations in particular,
    shall rely on the map for their rational basis. (Future Land Use Element, Background Analysis, p. 1-3.)
  2. The Future Land Use Element of the Background Analysis states that the existing land use in Cocoa in 1987 includes about 389 acres of wetlands, or 8.6%, out of a total of 4520 acres. (Future Land Use Element, Background Analysis, Table 1-2.)
2. Public Facilities Element
  1. The Drainage Subelement of the Public Facilities Element of the Background Analysis describes Cocoa's drainage as flowing equally into two waterbodies: the Indian River Lagoon on the east and the St. Johns River on the west. Of the five main drainage areas within Cocoa, three are part of the Indian River Lagoon Watershed and two are part of the St. Johns River Watershed.
  2. The map of Drainage Areas/Facilities, which is part of the Drainage Subelement, depicts each of the five drainage areas. Drainage Area III is bounded on the east by the high relict dune line just east of U.S. Route 1, on the west by Clearlake Road, on the south by Dixon Boulevard, and on the north by a low ridgeline in the vicinity of Industrial Park Road. Drainage Area III encompasses the wetlands bisected by Michigan Avenue, just west of U.S. Route 1. These wetlands, which are about 3000 feet from the Indian River, are part of a series of linear marshes running north-south and representing the "major repository" of stormwater drainage from contributing portions of Drainage Area
    1. The Background Analysis reports that these marshes function effectively as a surface water management area.
  3. Although on the landward side of the dune line, Drainage Area III is within the Indian River Lagoon Watershed because excess water in the area reverse flows into the lagoon during periods of very wet weather. According to the map of Vegetative Cover and Wildlife in the Background Analysis, seagrasses cover either the southeastern portion of the open space/wetlands south of Michigan Avenue or the adjacent land designated as medium-density residential. Noting historical encroachment on these wetlands, the Background Analysis concludes that continued encroachment will reduce the size of the storage capacity and increase the likelihood of outflow into the Indian River Lagoon.
  4. Drainage Area IV includes the wetlands found between the north end of Range Road and the largest unincorporated enclave within the City. These wetlands, which drain into the St. Johns River, are the site of Little Mud Lake. According to the Water Quality Protection Subelement of the Background Analysis, Little Mud Lake is largely a willow marsh with little or no open water. What water remains is probably of poor quality. However, the Background Analysis observes that the lack of adequate water quality data for all waterbodies in the City is itself a problem.
  5. Drainage Area V includes the largest contiguous wetlands within the City, which is the area north and west of the intersection of Michigan Avenue and Range Road. This area, which drains into the St. Johns River, surrounds Big
    Mud Lake, whose water quality is probably in poor condition, according to the Background Analysis.
  6. The Drainage Subelement of the Background Analysis acknowledges that the surface drainage systems for Cocoa have not been comprehensively inventoried since June, 1968. However, Drainage Area III is known to contribute about 29% of the stormwater runoff-generated pollutant loadings from the City to the Indian River Lagoon in the vicinity of the City. Although the wetlands serve as natural treatment and storage units, "[t]he continued loss of wetland areas will result in a corresponding decline in the overall effectiveness of the remaining wetlands to remove pollutants." (Drainage Subelement, Background Analysis, p.
    4-30.) By way of comparison, Drainage III loads the Indian River Lagoon in the vicinity of the City with more than double the poundage of suspended solids than does the Jerry Sellers wastewater treatment plant in Cocoa.
  7. As to Drainage Area V, the Drainage Subelement warns that the salutary effect of Big Mud Lake, which serves as a natural treatment unit for stormwater pollutants, will be lost once the lake reaches its assimilative capacity to absorb or fix incoming loads of pollutants. According to the Water Quality Subelement of the Background Analysis, Big Mud Lake is probably eutrophic and "reduction of stormwater pollution . . . is probably the only means to restore [it]." (Water Quality Protection Subelement, Background Analysis, p. 6-62.)
  8. The Drainage Subelement concludes, however, that the impact of stormwater runoff-generated loadings is not expected to increase significantly and may even be reduced due to stormwater treatment requirements and stormwater retrofitting projects. However, existing stormwater treatment facilities serve only about 5.5% of the land area within the City, which depends heavily upon existing natural treatment systems for the management and control of stormwater problems.
  9. The Drainage Subelement offers 13 recommendations. Four of the first five recommendations suggest an inventory of existing stormwater drainage systems, evaluation of the effectiveness of current strategies, and projection of the impact of future growth on flow volumes. The fourth recommendation reads:
    
    Efforts should be undertaken to ensure the protection and preservation of existing wetlands in Drainage Areas #3, 4 and 5, with a priority being placed on the wetlands in Drainage Area #3. Applicable actions include modifications to existing zoning classifica- tions and provisions, land development regu- lations, stormwater, runoff treatment requirements, and other regulatory measures, as well as the possible acquisition of conservation or drainage easements in the wetland areas.
    
    (Drainage Subelement, Background Analysis, p. 4-37 and 4-38.)
  10. The Floodplain Management Subelement of the Conservation Element of the Background Analysis defines floodplains as those areas that become inundated by water on a recurring basis. The 100 year floodplain is an area that stands a 1% chance in any year that it will be subject to such inundation. The subelement notes that the addition of fill in the floodplains may raise flood
    elevations to an extent that flooding results to structures previously thought to be outside the floodplain.
  11. According to the Floodplain Management Subelement, 745 acres or 16% of the area of the City is located within the 100 year floodplain. Only 66 acres or about 9% of these floodplains are currently developed. Wetlands occupy 120 acres or 16.1% of the 100 year floodplain in the City.
  12. In assessing the future needs of Cocoa with respect to floodplains, the Floodplain Management Subelement expressly assumes that the "areas currently supporting open water or wetlands are clearly safe from development." (Floodplain Management Subelement, Background Analysis, p. 6-72.) This subelement concerns itself with the "several adverse consequences" of the development of the remaining 510 acres of undeveloped wetland upland within the
    100 year floodplain. The Background Analysis warns that development within the
    100 year floodplain "would be dependent upon the proper functioning of all drainage systems needed to overcome soils limitations" or else less severe storm events might result in recurrent flooding. Id.
  13. The Floodplains Subelement concludes that adverse consequences, such as flooding existing homes, can best be avoided by "limiting any development which requires the placement of fill" and encouraging the use of nonwetland upland floodplains as open space. Again concerning itself exclusively with nonwetland uplands within the 100 year floodplain, the subelement recommends "minimal development, such as very low density single family homes," to avoid future infrastructure problems due to flooding existing structures. (Floodplain Management Subelement, Background Analysis, p. 6-73.)
3. Recreation and Open Space Element
  1. The Recreation and Open Space Element of the Background Analysis acknowledges that lands designated as open space may include wetlands.
4. Conservation Element
  1. The Fisheries and Estuarine Subelement of the Conservation Element describes the Indian River Lagoon as a tidal estuary, whose brackish waters are an important resource for commercial and recreational fishing. The subelement notes that considerable amounts of seagrass cover have been lost, presumably due to human-induced environmental changes. One of the causes of the loss of seagrasses, which are a crucial component in the ecological food web of the estuary, is the discharge of inadequately treated stormwater.
  2. The Fisheries and Estuarine Subelement concludes that the pollutant discharges, which include stormwater, must be "reversed" if the estuarine resources are to be "maintained." The subelement contains a recommendation that existing drainage systems be improved and projects feasible only through dredging and filling of wetlands be prohibited, except for projects of overriding public interest. (Fisheries and Estuarine Subelement, Background Analysis, p. 6-50.)
5. Coastal Management Element

The Coastal Resources Subelement of the Coastal Management Element of the Background Analysis defines the coastal area for the subelement as the entire City. (Coastal Resources Subelement, Background Analysis, p. 5-5.) The subelement reports that shellfish were once harvested commercially through the
entire Indian River Lagoon. However, due to the effects of urban and agricultural development, shellfish harvesting in the lagoonal waters adjacent to Cocoa is either restricted or prohibited. The subelement notes that the manatee, which is the only endangered mammal regularly inhabiting the Indian River, suffers from the loss of seagrasses, upon which the manatee grazes.
The Coastal Resources Subelement states that the Indian River Lagoon receives little tidal flushing due to its distance from Sebastian Inlet. Thus, whatever pollutants are discharged into the lagoon remain indefinitely. In general, the water quality of the lagoon, according to one source cited in the Background Analysis, ranges from fair to poor. According to another source cited in the Background Analysis, the water quality is poor. The subelement reports that, by November, 1988, Cocoa was projected to complete the expansion of the Jerry Sellers wastewater treatment plant, whose effluent flows into the lagoon. The expansion was to increase the capacity of the plant by 80% of its present capacity. (Coastal Resources Subelement, Background Analysis, p. 5-10.)
The Coastal Resources Subelement discloses that the Indian River Lagoons Field Committee was commissioned in 1985 to assist in the preparation of an integrated management plan for the lagoon, which extends over 156 miles through five counties and 40 municipalities. One of the committee's general recommendations is that local governments should include in their comprehensive plans the committee's recommendations for floodplain and critical area protection. (Coastal Resources Subelement, Background Analysis, p. 5-34.)
Upon receipt of the Proposed Plan and supporting documents, DCA distributed them to various state, regional, and local agencies for comment, as part of the intergovernmental review process mandated by Section 163.3184(4) and (5), Florida Statutes. The Act gives these agencies 45 days within which to send their comments to DCA, which has an additional 45 days within which to transmit its objections, recommendations, and comments (ORC) to the local government submitting the plan.
In the present case, DCA received responses from the Divisions of State Lands and Resource Management of the Department of Natural Resources (DNR); Comprehensive Planning Division of Brevard County; Regional Planning Council; Bureau of Historic Preservation of the Division of Historical Resources of the Department of State (the Department of State); Planning Department of the St. Johns River Water Management District (the Water Management District); Bureaus of Air Quality, Wastewater Management and Grants, Groundwater Protection, and Waste Planning and Regulation and Sections of Coastal Management and Drinking Water of the Department of Environmental Regulation (DER); Game and Fresh Water Fish Commission; and District 5-- Division of Planning and Programming of the Department of Transportation.
DNR commented upon Policy 1.1.C, which as noted above in Paragraph 28 above provides that the City will adopt land development regulations to protect the wetlands identified in the Conservation and Future Land Use Elements. DNR stated that the policy "needs to project a long-term land use program to insure the protection of natural resources."
DNR objected that the Coastal Management Element "contains no goal or objective addressing the protection, conservation, or enhancement of remaining
coastal wetlands, living marine resources, . . . wildlife habitat, or the maintenance or improvement of estuarine environmental quality."
The Regional Planning Council reported that Objective 6.4 in the Conservation Element lacks policies addressing the need to protect upland habitat adjacent to regionally significant wetlands, as required by Policy 43.8 in the plan of the Regional Planning Council.
In a letter signed by Secretary of State Jim Smith, the Department of State determined that the Proposed Plan was inconsistent with the historic preservation aspects of the state comprehensive plan and failed to meet the requirements of the Act "regarding the identification of known historical resources . . . and . . . establishment of policies, goals, and objectives for historic preservation."
The Department of State stated that Objective 3.1.4 of the Housing Element, which is quoted in Paragraph 33 above, lacks a specific plan of action for achieving its stated goal of preserving housing designated as historically significant. The Department of State faulted the Coastal Management Element for its failure to mention historical structures or archaeological sites and the Future Land Use Element and Map for their omission of known historical resources.
The Water Management District stated that the Proposed Plan is "deficient with respect to water-related goals, objectives and policies required by Chapter 9J-5." With respect to the Future Land Use Element, the Water Management District noted the absence of objectives to ensure the protection of natural resources and policies to provide for drainage and stormwater management.
The Water Management District found several items missing from the Coastal Management Element. These items included an inventory of the effect of the future land uses on natural resources; objectives protecting coastal wetlands, resources, and habitats; objectives addressing estuarine environmental quality; policies limiting the impacts of development upon wetlands; and policies identifying techniques for the protection of the Indian River Lagoon. The Water Management District concluded that this element did not appear to follow the requirements of Chapter 9J-5 as closely as did the other elements of the Proposed Plan.
The Water Management District also objected to the Conservation Element on the grounds that it lacked specificity for the protection of existing natural resources and time frames for the treatment of untreated stormwater discharges, fisheries, wildlife, and wildlife habitats.
DER commented generally that the Proposed Plan "appears to have important weaknesses." Referring to the Future Land Use and Capital Improvements Elements, DER noted the need for a number of studies regarding drainage, but the absence of any funds allocated for this purpose. DER also commented generally that "much of the work that identified potential areas for conservation, such as mapping the areas subject to flooding and areas with poor soil suitability or wetlands, was not carefully incorporated into the Future Land Use Element."
DER objected that the Future Land Use Element is not based upon analyses of the effect of development and redevelopment of flood-prone areas and the character and magnitude of existing vacant or undeveloped land to determine

its suitability for use. DER stated that the Future Land Use Element insufficiently analyzes the wetlands and floodplains identified elsewhere in the Proposed Plan.

Findings of DCA
1. General
  1. On August 5, 1988, DCA mailed to Cocoa the ORC, which contained 139 objections, the above-described objections and comments of the other state, regional, and local agencies, and general background information concerning the Act and the planning process.
  2. The ORC explains that objections relate to specific requirements of the Act or Chapter 9J-5. Each objection includes a recommendation of "one approach that might be taken" to address the objection. A comment is advisory in nature and does not form the basis of a determination of noncompliance.
  3. The ORC states that the City's public participation procedures are in violation of Rule 9J-5.004(2)(c) and (e). The objections states that the procedures lack provisions to assure that the public has opportunities to provide written comments and would receive responses to their comments. The ORC recommends that the City revise the procedures to include the necessary provisions.
  4. The ORC states that the format of the goals, objectives, and policies are in violation of Rules 9J-5.003(32), (57), and (64) and 9J-5.005(6). The objection states:
    
    Goals which do not state a long-term end towards which programs or activities are directed are not acceptable.
    
    Objectives which are not measurable, not supported by the data and analysis and are stated in an unspecific, tentative and/or conditional manner are unacceptable.
    
    Policies which are tentative or conditional, or do not describe the activities, programs and land development regulations which will implement the plan, are unacceptable.
    
    The accompanying recommendation adds:
    
    A goal must be written to state a long-term desired result [citation omitted].
    
    Objectives must be written in a way that provides specific measurable intermediate ends that mark progress toward a goal [citation omitted]. A measure such as a quantity, percentage, etc. and a definite time period for its accomplishment should be included in the objectives. Policies answer the question of "how" by specifying the clearly defined actions (programs and activities) local
    governments will take to achieve each objective and ultimately the identified goal [citation omitted]. If desired, local governments may choose to assign the measurability to a policy . . .. [DCA] is primarily concerned that local governments provide the basis for assessing the effectiveness of their plan.
    
    When writing objectives and policies, avoid vague words and phrases (e.g., "adequate," "sufficient," "minimize," and "adverse impacts"), terms which nullify the strength of the statement (e.g., "consider" or "encourage"), or advisory words. "Should" implies an advisory statement which is inappropriate in an adopted portion of the plan. Using the term "shall" provides direction in implementing the plan and will make later evaluation and update of the plan an effective process. . . . The use of words like "ensure" and "encourage" leaves the what and how questions unanswered. [A]n
    objective cannot be phrased to "maintain or improve," one or the other actions might be set as an objective, but not both. Objectives and policies which are written using phrases such as "if needed," "whenever possible" and "where feasible and appropriate," or other vague words or phrases make the statements unacceptable because the conditional criteria making them specifically operational, have not been stated.
    
    2. Future Land Use Element and Map
  5. Included in the background information accompanying the ORC is the following statement from DCA concerning the purpose of the future land use element:
    
    The purpose of the future land use element is the designation of future land use patterns as reflected in the goals, objectives and policies of all the comprehensive plan elements. Depicting the future land use patterns on the future land use map serves
    to (1) anticipate and resolve land use compatibility issues, and (2) provide the information necessary to determine the needed location and capacity of public facilities.
    
    (Major Issues--Local Government Comprehensive Planning, p. 3.)
  6. The ORC contains three objections and recommendations with respect to the data and four objections and recommendations with respect to the analysis contained in the Future Land Use Element of the Background Analysis. These
    objections cover the failure of both Existing Land Use Maps to depict natural and historic resources, which is in violation of Rule 9J-5.006(1)(a)6. and 11.
  7. The ORC contains seven objections and recommendations with respect to the goals, objectives, and policies under the Future Land Use Element of the Proposed Plan and three objections and a comment with respect to the Future Land Use Map.
  8. Two of the objections pertain to the two objectives of the Future Land Use Element. These objections, which are recited above in Paragraph 27, generally provide for the management of future growth through the implementation of unspecified land development regulations and require the direction of future development and redevelopment into appropriate areas as depicted on the Future Land Use Map. The ORC states that these objectives are unmeasurable and unsupported by the data and analysis in the Background Analysis, which is in violation of Rule 9J-5.005(3)(b).
  9. Another objection is that the Future Land Use Element of the Proposed Plan lacks objectives addressing the requirements set forth in the following rules: Rules 9J-5.006(3)(b)1.-8. These rules require, among other things, the coordination of future land uses with the appropriate topography, soil, conditions, and availability of facilities and services; and the protection of natural and historic resources.
  10. DCA also objects in the ORC to Policy 1.1, which is recited at Paragraph 28 above and calls for land development regulations protecting wetlands and regulating areas subject to flooding, among other items. The ORC states that Policy 1.1 fails to satisfy the definition of a policy set forth in Rule 9J-5.003(64) because it fails to specify how the programs and implementation activities would be conducted.
  11. The ORC asserts that Policy 1.1 is unsupported by the necessary data and analysis, in violation of Rules 9J-5.005(1)(a)6. and 10., 9J-5.005(1)((b)3. and 4., and 9J-5.005(2)(a). The missing data and analysis include: the uses of conservation and undeveloped land; the presence on existing land use maps of wetlands and floodplains; and the availability of any facilities and services, as identified in the Drainage Subelement, to serve existing land uses.
  12. The ORC states that the Future Land Use Element lacks policies addressing the requirements set forth in Rule 9J-5.006(3)(c)3. and 8. The former subsection requires a policy addressing implementation activities directed toward providing facilities and services to meet locally established level of service standards concurrent with the impacts of development. The latter subsection requires a policy addressing implementation activities directed toward identifying, designating, and protecting historically significant properties.
  13. As to the Future Land Use Map, the ORC identifies deficiencies similar to those cited regarding the Future Land Use Element with respect to a lack of support by the data and analysis. The deficiencies in the data and analysis include the failure to show all required land use categories, including conservation and historic resources, which are required by Rule 9J-5.006(4)(a); failure to show one land use category, the redevelopment area, that is described in the text; and omission of all required natural resources, such as floodplains and wetlands, which is in violation of Rule 9J-5.006(4)(b).
  14. Noting that the legend on the Future Land Use Map states that the map is intended as an adjunct to the Plan, DCA comments that the legend should reflect that the map will be adopted as part of the Plan.
    
    3. Housing Element
  15. One of the objections to the data underlying the Housing Element in the Background Analysis is that they do not include an inventory of historically significant housing listed in the Florida Master Site File, housing designated as historically significant by a City ordinance, or the location of the single house that is listed on the National Register of Historic Places. All of this information is required by Rule 9J-5.010(1)(g).
  16. The ORC contains an objection to Objective 3.1.4, which is set forth in Paragraph 33 above. The ORC states that this objective, which promises the preservation of historically significant property, is unmeasurable.
    
    4. Public Facilities Element
  17. The ORC sets forth six objections to the data and analysis underlying the Drainage Subelement of the Public Facilities Element of the Background Analysis. These objections point out the absence of data and analysis concerning the following items: the design capacity of the drainage facilities, which information is required by Rule 9J-5.011(1)(e)3.; the existing level of service standard provided by the drainage facilities, which information is required by Rule 9J-5.011(1)(e)5.; and the projected facility capacity, including surpluses and deficiencies, for the second increment of the planning period, which information is required by Rule 9J-5.011(1)(f)3.
  18. The ORC states that Objectives 4.3.5, 4.3.6, and 4.3.7 are unmeasurable and, as to Objectives 4.3.6 and 4.3.7, unspecific. These objectives, which are quoted in Paragraph 35 above, respectively deal with flood control, wetlands protection, and adequate surface water management facilities. The ORC is also critical of Policy 4.3.6.1, which is set forth in Paragraph 36 above and promises that the City will avoid infrastructure improvements that encourage wetlands development. DCA recommends that the Drainage Subelement show how the City will conduct the programs and implementing activities to avoid such infrastructure improvements.
    
    5. Coastal Management Element
  19. Among the objections to the data underlying the Coastal Management Element of the Background Analysis is that the element lacks any inventory, analysis, or mapping of historic resources, which are required by Rule 9J- 5.012(2)(c).
  20. The ORC cites the failure of the Coastal Management Element to include policies addressing the requirements of Rule 9J-5.012(3)(c)1.-3., 8.-10., 13., and 14. These subsections require policies that, among other things, limit the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, wildlife habitat, and living marine resources; restore or enhance disturbed or degraded natural resources, including wetlands, estuaries, and drainage systems; regulate floodplains, stormwater management, and land use to reduce the risk of loss of human life and property as a result of natural hazards; protect historic resources by, among other things, identifying historic sites and establishing performance standards for the
    development and sensitive reuse of historic resources; and generally establish priorities for shoreline land uses.
    
    6. Conservation Element
  21. The ORC contains an objection to Objective 6.5 of the Fisheries and Estuarine Habitat Subelement of the Conservation Element of the Proposed Plan. DCA finds this objective, which is cited in Paragraph 40 above and requires the protection of the Indian River Lagoon, to be unmeasurable and unspecific.
  22. The ORC states that the Conservation Element lacks policies to protect existing natural resources and designate environmentally sensitive lands for protection, which are required by Rule 9J-5.013(2)(c)7. and 9.
    
    7. Capital Improvements Element
  23. The ORC notes one objection and recommendation to the data underlying the Capital Improvements Element of the Background Analysis. The objection states:
    
    Because data and analysis requirements were missing in the Drainage . . . Subelement, capital improvement needs cannot be adequately evaluated. Capital improvement needs for [this subelement] cannot be assumed to be nonexistent.
  24. The ORC states seven objections and recommendations to the analysis underlying the Capital Improvements Element of the Background Analysis. These objections generally concern a lack of information about costs and revenues.
  25. The ORC contains objections to Objectives 9.1, 9.2, and 9.7 as unmeasurable and, with respect to Objectives 9.2 and 9.7, unspecific. These objectives, which are quoted at Paragraph 44 above, deal generally with funding capital improvements required by level of service standards.
  26. The ORC cites the absence of an objective addressing the requirements of Rule 9J-5.016(3)(b)5. This rule requires an objective showing the local government's ability to provide or require the provision of the needed improvements identified in the Plan's other elements. The rule also requires an objective showing the local government's ability to manage the land development process so that the public facility needs created by previously issued development orders do not exceed the ability of the local government to fund or require the funding of capital improvements.
  27. DCA also objects to numerous policies in the Capital Improvements Element on the grounds that they are not measurable.
    
    8. Miscellaneous
  28. DCA objects in the ORC that the Proposed Plan lacks goals, objectives, and policies that further numerous policies of the Regional Comprehensive Policy Plan of the Regional Planning Council.

Review of ORC and Adoption of Plan
1. Review of ORC
  1. Within a few days after receiving the ORC from DCA, Cocoa forwarded the relevant portions of the Proposed Plan to the consultants who had prepared them for the preparation of responses and revisions. On or about August 31, Cocoa received the responses and revisions from the consultants.
  2. As noted in Paragraph 46 above, the procedures in effect at this time were those contained in Ordinance No. 4-80. On August 23, 1988, the City Council postponed until its next meeting consideration of a new ordinance establishing procedures for adopting amendments to the Proposed Plan.
  3. On August 31, 1988, a 1 1/4" by 8 1/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on September 14, 1988, at 5:15 p.m. for the purpose, among other things, of recommending to the City Council changes to the nine elements of the Proposed Plan. The advertisement stated that the City Council will consider the recommendations of the Planning and Zoning Board during its regularly scheduled meeting on September 27, 1988, at 7:00 p.m. The advertisement advised that the Plan documents, including the Future Land Use Map, were available for public inspection at the Community Improvement "Office."
  4. On September 1, 1988, a 6 1/2" by 10 1/2" display advertisement provided the same information as that contained in the advertisement published the prior day. The display advertisement stated:
    
    The City urges any citizen to review the Plan documents and submit written or oral comments at any time during the process. Such
    comments will be presented during the hearing along with response as appropriate. All citizens will be given the opportunity to review the documents, have legal notification, submit written or oral comments, and receive appropriate responses to items related to elements to be adopted by the City as the City's Comprehensive Plan.
    
    The display advertisement bore a large, boldface headline in block print, stating: "NOTICE OF CHANGE IN LAND USE." The advertisement contained a large map of the City. A 6 1/2" by 4" version of the same advertisement appeared elsewhere in the same edition of the newspaper.
  5. At the regular meeting of the City Council on September 13, 1988, Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, complained about the limited opportunities for public participation, in part caused by the lack of current information available to the public. In response, the City Council announced the dates of September 27 and October 4, 5, or 6 for the adoption hearings for the Plan. Richard Amari, the City Attorney, reminded everyone that the Act gives local governments only 60 days following the issuance of the ORC
    within which to adopt the Plan. He said that Cocoa was not trying to bypass public participation, but had to comply with the law.
  6. At the September 13 meeting, the City Council adopted Resolution No. 88-31, which became effective the same date. The resolution provides in relevant part:
    
    Section 1. The City will advertise pursuant to Florida State Statutes and Department of Community Affairs Rule 9J-5.
    
    Section 2. The City will post notices of its public hearings in City Hall, Library and Police Department regarding consideration of the Comprehensive Plan.
    
    Section 3. The City will provide in its ads encouragement for written and oral comments by the public which written comment will be made part of the public record.
    
    Section 4. The City Manager or his designee will assure that responses to written comments received during the process will be given either at the public hearings as appropriate
    or written responses may be given upon request.
    
    Section 5. The plan documents are available for public inspection at City Hall in Rooms
    208 & 202, and the Cocoa Public Library during normal business hours.
    
    Section 6. This Resolution shall govern activities engaged in by the Planning and Zoning Board acting as the Local Planning Agency during its public hearing on September 14, 1988, and continued from time to time; and by the City Council at its Public Hearing on September 27 as may be continued from time to time.
  7. On September 14, 1988, the Planning and Zoning Board conducted a public hearing concerning, among other items, the Plan. The scarcity of Plan documents, especially the Future Land Use Map, limited the amount of meaningful participation by members of the audience and, to a lesser extent, the Board.
  8. The Future Land Use Map is a color-coded document. A black and white photocopy of the map incompletely depicts the various land uses shown on the map. An ongoing problem through the planning process was that these color maps, which were prepared for the City by the Regional Planning Council, were not generally available to the public. However, during most if not all of the process, Ms. Lawandales maintained in the Community Improvement Department a large color map, which was generally current.
  9. Part of the problem was the City's inability or unwillingness to incur the cost and suffer the inconvenience of printing new maps every time that there was a change in the use assigned to a parcel. Such changes were frequent
    in the final weeks before adoption of the Plan. At the September 14 meeting, for instance, there was already a handwritten list of 20 numbered proposed changes to the Future Land Use Map.
  10. Item 10 of the proposed changes converts from open space to medium- density residential most of the southeast quarter of the open area located north of Michigan Avenue and west of U.S. Route 1, which is part of the linear marsh wetlands within Drainage Area III.
  11. The September 14 meeting was a scene of some confusion due to the above-described documents. One Board member moved that the public be given at least those documents that the Board had. The motion failed. In part due to time constraints and limited staff resources, the Board decided instead to copy for the public only the maps and revisions and responses to the goals, objectives, and policies. The meeting adjourned by a 4-2 vote before considering the Future Land Use Map. Two Board members remained after the meeting to share their Future Land Use Maps with the audience.
  12. A few days later, City staff persons compiled a large notebook with a complete set of documents related to the Plan and distributed these notebooks to the members of the City Council. These documents consisted of the goals, objectives, and policies of the Proposed Plan; the unrevised Background Analysis; the responses and revisions to the goals, objectives, and policies as a result of the ORC; the EAR; and possibly other documents.
  13. On September 18, 1988, a 10 1/2" by 6 1/2" display advertisement announced three workshops and two public hearings to be held by the City Council. The workshops were set for September 19 at 7:00 p.m., September 20 at 5:00 p.m., and September 22 at 6:30 p.m. The first workshop would cover the Public Facilities, "Transportation" (i.e., Traffic Circulation), and Capital Improvements Elements. The second workshop would cover the Coastal Management, Conservation, and Recreation and Open Space Elements. The third workshop would cover the Future Land Use, Housing, and Intergovernmental Coordination Elements. The advertisement stated: "The general purpose of the workshops is to receive public comments and review the Comprehensive Plan." Some local residents were aware of the three workshops at least one day prior to the publication of the advertisement.
  14. The same advertisement announced that the public hearings would take place on September 27, 1988, at 7:00 p.m. and October 4, 1988, at 6:00 p.m. The advertisement stated:
    
    The purpose of these hearings is to receive public comments and recommendations on a Comprehensive Plan, and to review and adopt an ordinance adopting the Comprehensive Plan in accordance with the requirements of growth management and land development legislation adopted by the Florida Legislature in 1985 and 1986.
  15. On September 19, the Planning and Zoning Board and City Council jointly conducted a workshop on the Public Facilities, Traffic Circulation, and Capital Improvements Elements. Mayor Robinson acknowledged the receipt of a petition of residents from two subdivisions in opposition to changes to their neighborhoods by the Plan. Mayor Robinson informed the audience that the Future Land Use Map would be discussed at the September 22 meeting.
  16. The format of the September 19 workshop, as well as the two other workshops, was that City staff would first address an issue, followed, in order, by City Council members, Planning and Zoning Board members, and lastly the audience.
  17. City staffpersons at the September 19 workshop identified a list of
    38 recommended changes to the Future Land Use Map. Item 10 from the September
    14 list was renumbered as Item 7. Item 6 on the September 19 list encompasses what remained of the eastern half the open space north of Michigan Avenue. The recommendation is to designate this wetlands area commercial. The northern tip of the linear marsh wetlands area south of Michigan Avenue and west of U.S. Route 1 is proposed to be redesignated commercial in new Item 10. Item 11 proposes that the remainder of this open space/wetlands be redesignated medium- density residential.
  18. The recommended changes appearing at the September 19 workshop substantially eliminate the two other open space/wetlands, as well. Item 33 recommends low-density residential for most of the southern half of the open space/wetlands located between Range Road and the largest unincorporated enclave within the City. Item 34 recommends medium-density residential for most of the northern half of the same open space/wetlands. According to the Soils Map contained in the Background Analysis, the northern portion of Little Mud Lake is in the medium-density residential area and the southern portion of the lake is in the low-density residential area. After these two changes, about one quarter of the original open space/wetlands between Range Road and the unincorporated enclave retains the originally proposed designation as open space. The remaining open space is an L-shaped strip immediately adjacent to the unincorporated area within the City. According to the Existing Land Use Map in the Background Analysis, the portion of the L-shaped strip running north-south is devoted to recreational uses, such as a park.
  19. Items 37 and 38 recommend the complete elimination of the largest open space/wetlands, which is located north and west of the intersection of Michigan Avenue and Range Road and is within Drainage Area IV. Item 37 proposes that nearly all of this open space/wetlands, including Big Mud Lake, be redesignated low-density residential. Item 38 proposes that the western portion of this open space/wetlands be redesignated medium-density residential.
  20. On September 20, 1988, the Planning and Zoning Board and City Council jointly conducted a workshop on the Coastal Management, Conservation, and Recreation and Open Space Elements. Discussion included the redesignation of the open space/wetlands in the vicinity of Michigan Avenue from open space to medium-density residential and commercial. At the conclusion of the meeting, the City Council agreed to add another parcel to the list of recommended changes to the Future Land Use Map.
  21. On September 22, 1988, the Planning and Zoning Board and City Council jointly conducted a workshop on the Housing, Future Land Use, and Intergovernmental Coordination Elements. Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, objected at this workshop to the Future Land Use Element, as well as other matters. Petitioner Houston herself spoke against the Future Land Use Map.
  22. A Future Land Use Map was present at this workshop. This map, reflecting the latest addition, showed 39 numbered areas marked in black. The numbers corresponded to the list of recommended changes to the Future Land Use
    Map. The City Council authorized during the workshop the addition of two more proposed changes.
  23. The September 22 workshop marked the last involvement of the Planning and Zoning Board in the planning process. The Board never formally recommended the Plan and supporting documents to the City Council for adoption. However, by the end of the meeting, none of the Board members expressed any remaining objections to the Plan and supporting documents, and most if not all Board members had no serious objections to the Plan. A formal recommendation was therefore unnecessary.
2. Adoption Hearings
  1. On September 23, 1988, a display advertisement nearly identical in size and content to that published on September 18 stated that the City Council would conduct public hearings on September 27, 1988, at 7:00 p.m. and October 4, 1988, at 6:00 p.m. on changes in the use of land within the City limits. A similar display advertisement on September 29, 1988, announced the October 4 public hearing.
  2. The City Council received a list of 41 proposed changes to the Future Land Use Map at the September 27 hearing and approved the addition of a another property, as well as unrelated revisions to the Wastewater Element.
  3. In a presentation to the City Council, Ms. Lawandales referred to a set of revisions to the Future Land Use Element. These revisions were not the same as those prepared by the Regional Planning Council. Ms. Lawandales referred in her presentation to a set of revisions that add only two short clauses to the goals, objectives, and policies of the Future Land Use Element.
  4. At the October 4, 1988, public hearing, the City Council received written objections from Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, in the form of an eight-page letter. Given the detail and scope of the letter and lack of time, the City Council and staff were justifiably unable to offer a response until after the hearing, which concluded with the adoption of the Plan.
  5. During the hearing, the City Council approved the addition of five more properties to the list of 42 recommended changes to the Future Land Use Map.
  6. At the conclusion of the October 4 hearing, the City Council adopted the Plan by adopting Ordinance No. 20-88, which in relevant part provides:
    
    Whereas, after months of careful review and a public hearing the Planning and Zoning Board sitting as the Local Planning Agency has recommended adoption of the new Comprehensive Plan in substantially the form presented;
    and
    
    Whereas, the City Council has received objections, recommendations, and comments from the [Regional Planning Council, DCA], and various other agencies; and
    
    * * *
    Whereas, the City Council has made certain amendments in the proposed new Comprehensive Plan in light of [public comments], as well as the comments, recommendations, and objections of the [Regional Planning Council, DCA], and various other State agencies;
    
    * * *
    
    Now, therefore, be it enacted by the City Council of the City of Cocoa, Brevard County, Florida, that:
    
    Section 1. That Section 15-4 of the City Code of Cocoa is hereby amended to read as follows:
    
    Sec. 15-4 Adoption of Comprehensive Plan. The City's Comprehensive Plan consists of the one (1) volume book entitled Comprehensive Plan--City of Cocoa, Volume II, April 1988,
    which Comprehensive Plan consists of (i) Goals, Objectives and Policies for nine (9) elements, including Future Land Use, Traffic Circulation, Housing, Public Facilities, Coastal Management, Conservation, Recreation and Open Space, Intergovernmental Coordination and Capital Improvements, (ii) Procedures of Monitoring
    and Evaluation, (iii) Requirements for Consistency of the Local Comprehensive Plan, and (iv) Population estimates and projections utilized as basis for the plan documents, plus the Evaluation and Appraisal Report dated April, 1988.
    
    Section 2. Attached hereto and incorporated herein by this reference is the City's Comprehensive Plan as referenced in Section 1 of this Ordinance, which Comprehensive Plan is hereby adopted as the official comprehensive plan for and of the City.
    * * * Section 4. Ordinances and Resolutions in
    Conflict. All Ordinances or Resolutions or parts thereof that may be determined to be in conflict herewith are hereby repealed. The City's Comprehensive Plan approved with the adoption of Ordinance No. 11-80 of July 8, 1980, all as the same may have been amended from time to time, be and the same is hereby repealed.
    Section 5. Effective Date. This Ordinance shall become in full force and effect immediately upon its adoption by the City Council.
    
    Adopted by the Council of the City of Cocoa, in regular meeting assembled, on the 4th day of October, 1988.
    
    The ordinance is signed by Mayor Robinson, whose signature is attested by the City Clerk.
  7. The review and adoption proceedings ended with the October 4 hearing. At no time during these proceedings did Petitioner David P. Hendry, Sr. or Loula
    P. Hendry submit oral or written objections to the Plan or Proposed Plan. On or about August 13, 1988, Petitioner David P. Hendry, Sr. sent a letter dated July 31, 1988, to Cocoa and numerous other state and local officials. In the letter, he objected to a marina project that was under consideration. However, these comments did not constitute objections to the Plan or Proposed Plan, of which Petitioners Hendry were unaware until after it had been adopted by the City and determined to be in compliance by DCA.
The Contents of the Plan
1. General
  1. Besides the goals, objectives, and policies, the Plan consists of the EAR (described in Paragraphs 157-169), Resolution No. 88-31 (described in Paragraph 115), population data (described in Paragraph 170), a section entitled "Consistency of the Local Plan with the State Comprehensive Plan" (described in Paragraph 171), and a section entitled "Monitoring and Evaluation (described in Paragraph 46).
  2. The Plan is also supported by the data and analysis contained in the Background Analysis, portions of which are described in Paragraphs 47-67 above. The City submitted revisions to the Background Analysis, portions of which are described in Paragraphs 172-180 below.
2. Goals, Objectives, and Policies
  1. The goals, objectives, and policies of the Plan are those of the Proposed Plan, as revised by the City Council. The revisions are as follows:
    47 changes to the Future Land Use Map, as identified in Austin Exhibit 10; numerous revisions to the goals, objectives, and policies of the Proposed Plan, as identified in Austin Exhibit 10; two revisions to the proposed Future Land Use Element, as identified in Cocoa Exhibit 4; and revisions to the Solid Waste and "Sanitary Sewer" (i.e., Wastewater) Subelements of the Public Facilities Element, as identified in Cocoa Exhibit 4.
  2. There are no other revisions, additions or deletions affecting the goals, objectives, and policies of the Plan. The revisions described in Paragraph 181 below were never adopted by the City and are not part of the Plan. Responses, which are set forth in Austin Exhibit 10, are explanations offered by the City in response to objections and recommendations of DCA; responses do not contain any goals, objectives, or policies.
    1. Future Land Use Element and Map
  3. One response concerning the Future Land Use Element explains that objections in the ORC to missing data have been satisfied by a revision of the underlying data and analysis. However, as to objections with respect to the failure of the Future Land Use Map to depict conservation and natural resources, the response is that "no . . . conservation or historic resource land use categories are applicable for the city." However, the revised analysis underlying the Future Land Use Element includes a map of the Cocoa Historic District. The response to the objection that the Future Land Use Map fails to show all required natural resources is: "Wetlands are not a designated future land use."
  4. The revisions to the goals, objectives, and policies of the Future Land Use Element include revised Objectives 1.1 and 1.2, which are set forth in their proposed form in Paragraph 27 above. These revisions require that the City accomplish the tasks described in the two objectives within one year of Plan submittal.
  5. The revisions to the goals, objectives, and policies of the Future Land Use Element contain four new objectives. Objectives 1.3 and 1.4 respectively deal with the elimination by the year 2000 of blight and existing land uses that are inconsistent with the Future Land Use "Plan." Objective 1.5 states that within one year of Plan submittal all development activities "will be consistent with and supportive of the Plan's objectives for protecting natural and historic resources." Objective 1.6 states that within one year of Plan submission land development regulations will provide for the availability of sufficient land area for the siting of public facilities.
  6. The revisions contain several new policies. New Policy 1.1.3 allows the City to issue development orders only if the necessary public facilities, operating at the adopted levels of service, are available concurrent with the impacts of the development. New Policy 1.5.1 states that the City will identify its historical resources and maintain an updated file of historically significant properties. New Policy 1.5.3 provides that the City will protect its cultural, historic, and archaeological resources by helping to educate the public of the value of such resources, considering the establishment of a historic district, and purchasing development rights to preserve historically significant properties. Revisions also clarify that open space/residential areas on the Future Land Use Map will be used for park, recreational, and ancillary uses, except as required for other public purposes.
    
    2. Housing Element
  7. The City Council adopted several revisions to the goals, objectives, and policies of the Housing Element. Objective 3.1.4, which in its original form is set forth in Paragraph 33 above, is revised to provide that the quality of existing homes and neighborhoods will, at a minimum, be maintained, rather than maintained or improved. Policy 3.1.4.7, which is also set forth in Paragraph 33, is revised to add that the City will perform an annual review of
    historically significant housing units in order, as previously provided, to aid in the identification of historically significant housing and structures.
    
    3. Public Facilities Element
  8. Objectives 4.3.5, 4.3.6, and 4.3.7 are revised as follows with the new language underlined:
    
    Objective 4.3.5: To reduce existing flooding problems and to prevent additional flooding problems from being created as a result of future development through actions identified in needs assessments and engineering studies, with the actions being undertaken on a priority basis as determined in the engineering studies, with individual prioritized actions being initiated no later than one year following the completion of the engineering studies, consistent with the schedule of actions contained in the Comprehensive Improvements Plan [sic].
    
    Objective 4.3.6: To ensure the protection and preservation of existing wetlands as viable components of the City's surface water management systems, to include the establishment or maintenance of desirable hydroperiods, water quality conditions, and natural ecosystems applicable ordinances (including design criteria and standards) will be submitted for adoption consideration no later than October 1, 1990, with final adoption within one year following the initial submittal.
    
    Objective 4.3.7: To ensure the proper and adequate surface water management facilities are provided in response to identified needs existing deficiencies and needs will be determined, cost and time requirements of corrective actions will be identified, and alternative sources of revenue will be evaluated, with the above information being compiled into a Surface Water Management Plan for the entire City and any external service areas by October 1, 1995.
  9. The revision of another objective reiterates the intention of the City to perform engineering studies in the future to gain information necessary to drainage planning:
    
    Objective 4.3.2: To protect, preserve or improve the quality of surface drainage waters being discharged from existing and future drainage systems in the City so that such discharges do not contribute to the degradation of water quality conditions in
    receiving waterbodies or prevent the improvement of degraded conditions, and promote the continuance or establishment of healthy, balanced natural environments through the implementation of ordinances, engineering studies, inspection programs, and coordinative actions with regulatory agencies, with such activities being initiated no later than October 1, 1992.
  10. Revisions to several policies show an increasing recognition of the need to plan for drainage and the role of wetlands in such a plan:
    
    Policy 4.3.2.6: Proposed development plans will be thoroughly reviewed to ensure that new development does not adversely impact surrounding properties by altering drainage patterns and water storage capabilities so
    that increased volumes of water are discharged onto the properties or that surface drainage flows from the properties are not impeded or retarded so as to create or contribute to flooding or diminished land usage, unless such lands have been purchased or designated by the City for surface water storage purposes.
    
    Policy 4.3.4.3: The City will actively participate in the preparation and implementa- tion of applicable Surface Water Improvement and Management (SWIM) plans being undertaken by the [Water Management District] which will [replacing "would"] involve or include land areas in the City or waterbodies affected by drainage from the City.
    
    Policy 4.3.6.1: Public infrastructure improvements that encourage the development of wetlands will be avoided except in the case of overriding public interest, for the purpose of protecting and preserving wetland areas with appropriate measures such as ordinances and development standards being used [replacing "taken"] to control [replacing "discourage"] development in affected wetland areas.
    
    Policy 4.3.6.3: The City will review its existing land development design criteria, and revise if necessary, to provide for and encourage the incorporation of existing wetlands into land development plans for the use of "free services" offered by the natural areas provided that:
    
    --intrinsic natural wetland values, functions and hydroperiods are not adversely affected,
    --the wetland is maintained in its natural condition, and
    
    --the wetland is protected from future development.
    
    4. Coastal Management Element
  11. The revisions add a new goal, objective, and policies that provide:
    
    Goal 5.3: The natural resources of the City's coastal area shall be preserved, protected or enhanced to provide the highest possible environmental quality for recreation and the propagation of fisheries and wildlife.
    
    Objective 5.3.1: The City shall protect, and restore where necessary, the following natural resources and environmental attributes within its control: air quality, endangered species and their habitat, native vegetation and wildlife, fisheries and estuarine habitat, water quality, and floodplains.
    
    New Policy 5.3.1.1 incorporates Objectives 6.1 and 6.2-6.9 and the policies thereunder.
  12. The revisions contain another new objective and policies under the new goal described above. Policy 5.3.2.3 states that the City will conform its plan and development criteria to the guidelines set forth in yet-to-be identified resource protection plans to the extent "legally permissible." Policy
    5.3.2.4 states that the City shall notify the Resources Council of East Florida and the Indian River Aquatic Preserve of all proposed activities that the City Council considers will directly affect the coastal zone, including changes in stormwater discharge, vegetation removal, or dredge and fill operations.
    
    5. Conservation Element
  13. Objective 6.5 of the Fisheries and Estuarine Habitat Subelement, which is quoted in its original form in Paragraph 40 above, is revised as follows:
    
    Objective 6.5: By 1993, the abundance and diversity of submerged aquatic vegetation and fish species found in the City's lakes, and in the Indian River within the zone between the Cocoa shoreline and the Intracoastal Waterway, shall be as great, or greater, than they were in 1988.
  14. The City cites eight policies under Objectives 6.4 and 6.8 in response to the objection that the Proposed Plan lacks policies addressing the protection of existing natural resources and designating for protection environmentally sensitive land.
    
    6. Recreation and Open Space Element
  15. The revisions to the Recreation and Open Space Element contain a new objective concerning open space:
    
    Objective 7.2.1: Within one year of Plan submittal the land development regulations will include provisions for addressing the open space needs of the City.
    
    7. Capital Improvements Element
  16. The revisions to the Capital Improvements Element include requirements that the City satisfy the requirements of Objectives 9.1 and 9.2, which are set forth in Paragraph 44 above, by 1989 and 1990, respectively. The City revised Objective 9.1 to require, by 1989, the incorporation of levels of service standards into land development regulations. Also, the City added the following language to Objective 9.5, which is quoted in its original form at Paragraph 44 above: "Public Facility needs created by development orders issued prior to Plan adoption will not exceed the ability of the City to fund or provide needed capital improvements."
3. Evaluation and Appraisal Report
  1. The EAR, which is referenced in Paragraph 24 above, evaluates the success of an earlier, unrelated comprehensive plan previously adopted by the City. The EAR begins with an introductory section commenting about the area and problems facing the City.
  2. The introduction notes that the City has significant undeveloped lands, especially in the northwest section of Cocoa. A large part of these lands is the single open space/wetlands north of Michigan Avenue and west of Range Road. The EAR states: "Much of the land is not developable due to natural constraints; however, primary residential growth will occur in this area in the future."
  3. The introduction also recognizes that "drainage is still a major concern" due to the "extensive amount of new development and alteration of some natural drainage systems, as well as continued drainage problems from older development." Among the solutions noted in the introduction are the requirement of retention and detention areas in new developments.
  4. Concerning conservation and protection of the coastal zone, the introduction states:
    
    The City of Cocoa has continued to seek to protect the integrity of the flood hazard areas as significant development has not occurred in these areas as of this date.
    Maintaining these areas for natural functions, it will decrease the possibility of flooding and associated problems during heavy cycles of rain. This also adds to the water quality of the area.
  5. The major portion of the EAR is devoted to an evaluation of the success of the prior comprehensive plan. Several relevant portions of this self-assessment, which was updated on September 27, 1988, are set forth in the following paragraphs.
  6. Objective 2 under Open Space was to "develop flood plain controls which will allow for the protection of some open space around Cocoa's lakes and low areas in the event of development." The result: not accomplished.
  7. Objectives 2 and 3 under the Conservation/Coastal Element were to use the City's water retention ordinance to control surface drainage from new developments and continue to make needed drainage improvements. The results: the first objective was accomplished and the second objective was not accomplished as of April, 1988. However, as to the second objective, as of September 27, 1988, "a drainage improvement program has been initiated."
  8. Objective 3 under the Land and Vegetation Resources was to control the amount of filling that could occur in new development to ensure proper drainage in surrounding areas. The result: not accomplished in April, 1988, and partly accomplished by September 27, 1988.
  9. Objective 1 under Drainage was to develop a citywide Master Drainage Plan with priorities and cost estimates for drainage improvements needed in Cocoa. The result: not accomplished.
  10. Objective 3 under Drainage was to control activities in flood prone areas in an effort to prevent a detrimental impact on areawide drainage patterns. The result: not accomplished.
  11. Objective 4 was to encourage, as feasible, the use of natural filtration, detention, and retention to reduce runoff-associated drainage problems. The result: accomplished.
  12. Objective 11 under Intergovernmental Coordination was to adhere to statewide plans and programs designed to control nonpoint sources of water pollution and prevent alteration of areawide drainage patterns. Result: not accomplished.
4. Miscellaneous
  1. The Plan includes the population history and estimates that had been provided with the transmittal of the Proposed Plan in April, 1988. This document is included in Cocoa Exhibit 4.
  2. The Plan includes the Consistency of the Local Comprehensive Plan with the State Comprehensive Plan that had been provided in April, 1988, at the end of the City of Cocoa--Comprehensive Plan, Volume II . This document is a cross-index between provisions of the Plan and the state comprehensive plan.
5. Background Analysis
  1. In reply to objections and recommendations in the ORC pertaining to the Background Analysis, the City supplemented its data and analysis through revisions. Shortly after the Plan had been adopted and transmitted, the City sent to DCA the revisions to the data and analysis and responses to the objections and recommendations concerning data and analysis.
    1. Future Land Use Element and Map
  2. In response to the objection that the data omitted conservation uses and historic resources, the City states that there are "no conservation uses" and supplies a map depicting existing historic resources.
  3. Elaborating upon the historic resources, the City mentions a survey of historic structures that took place in November, 1987. The resulting list of
    72 structures is depicted on a map, which is included in the response and entitled, "Cocoa Historic District." An inventory of the properties is included.
  4. In a narrative response to an objection to the absence of an analysis of the need for redevelopment, the City describes its earlier redevelopment efforts, which include the adoption of a redevelopment plan, pursuant to Chapter 163, Part III, Florida Statutes. Noting the objectives of the redevelopment plan as to the elimination of slums and blighted conditions, the narrative concludes: "These goals should be retained and reiterated in the goals, objectives and policies section of the Comprehensive Plan."
    
    2. Housing Element
  5. The revised Background Analysis contains a long narrative concerning housing. At the end, the City states that it should take "appropriate measures" to preserve and protect the Porcher House, which is the only structure in the City listed on the National Register of Historic Places, and maintain the quality of older neighborhoods in order to preserve other potentially significant property.
    
    3. Drainage Subelement
  6. Responding to an objection that the data and analysis fail to include the capacity allocated to meet the City's drainage needs for the ten-year planning horizon, the City added the following language:
    
    However, information is not currently available for future allocation and usage during the ten-year planning period. The available information is insufficient to accurately determine the proportion of design capacities currently being used to handle runoff and groundwater flows in the drainage system components.
    
    4. Capital Improvements Element
  7. Elaborating upon its earlier responses to the objections to the Drainage Subelement of the Background Analysis, the City states that "[t]here are no planned capital improvements for the drainage system."
  8. The City refers to attached materials in response to numerous objections to the omission from the analysis of future revenue and expenditures available for needed capital improvements. However, such material was not included with the revisions and responses.
    
    5. Coastal Management Element
  9. The glossary added to the Background Analysis by the revisions reiterates the statement in the original Background Analysis, noted at Paragraph
    65 above, that the coastal area for the Coastal Resources Subelement is the entire City. (The reference to "Rockledge" is a typographical error; the Regional Planning Council, which drafted the Background Analysis and revisions, was working at the same time on the Rockledge comprehensive plan.) (Responses to DCA Comments, p. 12-6.)
    
    6. Miscellaneous
  10. In responding to objections to the data and analysis concerning the consistency of the Plan with the plan of the Regional Planning Council, the City cites a new Objective 6.3 with new Policies 6.3.1-6.3.5 and 6.4.9. These items, which generally deal with ensuring the persistence through 1998 of the 1990- level distribution and abundance of endangered and threatened species and their habitats in the City, were neither considered nor adopted by the City Council. Objective 6.3 and Policies 6.3.1-6.3.5 and 6.4.9 are therefore not part of the Plan.
Determination of Compliance by DCA
1. After receiving the Plan and supporting documents shortly after October 4, 1988, DCA analyzed the revisions and responses in light of the 139 objections and recommendations contained in the ORC.
2. At the conclusion of the analysis, DCA found that 28 of the revisions and responses were inadequate. These findings are set forth in the Preliminary Findings on the Cocoa Comprehensive Plan, which is dated November 16, 1988.
3. On November 26, 1988, DCA published, by way of a 10 1/2" by 6 1/2" advertisement, its Notice of Intent to Find the City of Cocoa Comprehensive Plan in Compliance. The advertisement complies with the statutory requirements.
Ultimate Findings as to Public Participation
1. The public participated in the comprehensive planning process to the fullest extent possible. The City Council adopted procedures to provide effective public participation, including notice to real property owners of all official action affecting the use of their property.
2. Any deficiency in the procedures is immaterial. The Planning and Zoning Board duly discharged its responsibilities as the local planning agency under the Act. The City Council and Planning and Zoning Board amply advertised their many public hearings and provided reasonable opportunity for written comments and open discussion. Comments from the public appear to have received fair consideration. The City disseminated proposals and other information as broadly as possible, although certain materials were available at times only to staff and not the City Council, Planning and Zoning Board, or public.
3. The City was confronted with a substantial task involving the identification, consideration, and resolution of complex technical and legal questions. The City prudently delegated much of the work to City staff and outside consultants. The Act generates severe time pressures, especially on the local government, which has only 60 days to digest the ORC and adopt a plan. Once the City received the ORC, about half of the 60 days was spent by the staff and outside consultants in drafting proposed revisions and responses.
4. Neither City Council or the Planning and Zoning Board could realistically commence public meetings until the members had reviewed the work
  of the consultants and staff. Critical land use decisions such as those involved in the adoption of a comprehensive plan are politically sensitive. The land use decisions in this case generated considerable controversy in the community. Members of the City Council or the Planning and Zoning Board could not reasonably be expected to commence public meetings before they were aware of what revisions and responses were being proposed by their experts.
5. The greatest shortcoming in the public participation process involved the ongoing proposed changes to the Future Land Use Map and the inability or unwillingness of the City to disseminate in a timely manner updated maps reflecting these proposed changes. Broader and more timely dissemination of the proposed changes would have facilitated more careful consideration of the effects of redesignating the uses of large parcels of land.
6. However, the real target of the frustrations expressed with the public participation process is with the resulting land use decisions, not the process itself. Even in light of the shortcomings with respect to the revisions to the Future Land Use Map, the public participated in the process to the fullest extent possible under the circumstances described above.
Ultimate Findings as to Consistency
1. Drainage, Wetlands, and Floodplains
  1. Internal Consistency
    1. The Plan is internally inconsistent with respect to drainage, wetlands, and floodplains. These inconsistencies render the Plan inconsistent in the related matters of protecting the estuarine waters of the Indian River Lagoon; fisheries, wildlife, and vegetation habitat; and general water quality.
    2. In general, the inconsistencies result from the conflict between Plan provisions protecting wetlands, restricting floodplain development, and ensuring adequate drainage, on the one hand, and, on the other hand, the elimination of nearly all of the existing open space/wetlands from, and the failure to depict wetlands as a natural resource on, the Future Land Use Map.
    3. Many Plan provisions assure the protection of wetlands, adequacy of drainage, and restriction of development in the floodplains, as well as the protection of the estuarine waters of the Indian River, various habitats, and general water quality.
    4. For instance, Policy 1.1.B protects the wetlands identified in the Conservation and Future Land Use Elements. Objective 1.5 requires that development activities will be consistent with and supportive of the Plan's objectives for protecting natural resources. Objective 4.3.6 promises ordinances to ensure the protection of wetlands. Policy 4.3.6.1 restricts public infrastructure funds that encourage the development of the wetlands.
      Goal 5.3 and Objective 5.3.1 provide for the protection and restoration of estuarine habitats and floodplains. Policy 6.4.7 prohibits any development that significantly and adversely alters the function of the wetlands. Objective 6.5 requires that the condition of the Indian River, in terms of its ability to support numbers and types of aquatic vegetation and fish, be maintained or improved between now and 1993. Policy 6.5.3 requires that the City take steps to reduce the volume of untreated stormwater. Objective 6.8 ensures the
      protection of the flood storage and conveyance capacities of the 100 year floodplain.
    5. However, the protection guaranteed wetlands, floodplains, and drainage is contradicted by the treatment of wetlands in The Future Land Use Map. The map is a critical component of the Plan. According to both Objective
      1.2 and the Background Analysis, the Future Land Use Map will provide the rationale for all future land use decisions when the City implements the Plan with land development regulations. The Future Land Use Map is at least as important as goals, objectives, or policies in setting the course for future development and redevelopment in Cocoa.
    6. The Future Land Use Map subordinates all but a small section of the wetlands in the City to residential and commercial land uses. The City could have extended effective protection to the wetlands by reserving them a place in Cocoa's future. First, the City could have shown them as a natural resource on the Future Land Use Map. Second, the City could have shown them as a conservation land use on the Future Land Use Map. The failure to take these steps was not inadvertent. The ORC pointed out both of these omissions.
    7. In the Proposed Plan, the City chose to designate the wetlands as open space, which provided some protection. Even so, DCA objected to the omission of a conservation land use category from the Future Land Use Map, as required by Rule 9J-5.006(4)(a). The City's response: "No . . . conservation .
      . .land use categories are applicable for the city." DCA also objected to the failure to show on the Future Land Use Map all required natural resources, which include wetlands under Rule 9J-5.006(4)(b). The City's response, which betrays a failure to comprehend the difference between a land use category and a natural resource: "Wetlands are not a designated future land use." These "explanations" are hardly consistent with overall protection of the wetlands or, specifically, with such provisions as are contained in Policy 7.2.1.2, which provides that the City will "[d]esignate conservation areas . . . as part of the future land use map in order to preserve open space and fulfill . . . [Conservation Element] objectives."
    8. As the Future Land Use Map presently stands, the City will soon adopt land development regulations consistent with the use of nearly all of its wetlands for low- and medium-density residential and commercial purposes. Following the adoption of these land development regulations, it will be too late to protect the wetlands as a system, which is how they function in providing drainage, habitat, and water filtration. Absent designation as a conservation area or open space, the wetlands can be preserved, at most, as isolated, poorly functioning remnants carved out of large-scale development plans.
    9. Wetlands are vital to the efforts of the City in the areas of drainage, flood control, and water quality. Two factors exacerbate the above- described inconsistencies in the Plan. First, the drainage system suffers from known deficiencies, and, at the same time, the City has failed to achieve certain significant objectives of its prior comprehensive plan with respect to drainage, flood control, and nonpoint sources of water pollution, such as stormwater runoff. Second, the data are inadequate concerning the City's drainage needs and capacity, as well as the precise role of the wetlands as to drainage and conservation.
    10. Although eliminating open space/wetlands as a land use category and declining to depict wetlands and floodplains as a natural resource, the City
      acknowledges several significant shortcomings in its drainage system and efforts to protect floodplains and wetlands. The City has failed to accomplish goals of earlier comprehensive plans to adopt a citywide Master Drainage Plan and obtain cost estimates for drainage improvements. It has even failed to adhere to statewide plans to control nonpoint sources of water pollution and prevent alteration of drainage patterns. A drainage improvement program, initiated between April and October, 1988, begins on an inauspicious note with the elimination of nearly all of the open space/wetlands from the Future Land Use Map.
    11. There are signs that the natural drainage system offered by local waterbodies and wetlands may be reaching or exceeding its capacity. There is clear evidence of at least isolated failures of vital parts of the natural drainage system. For example, Big Mud Lake has been exploited to its limit as a receptacle for untreated stormwater and is probably eutrophic. Suffering from untreated stormwater runoff, the Indian River has lost the vitality needed to maintain a harvestable shellfish population. The water quality of both of these waterbodies is not good.
    12. It is difficult to correlate Plan provisions protecting wetlands, ensuring adequate drainage, and preserving water quality with the nonrecognition of wetlands in the Future Land Use Map, especially in view of the City's admitted lack of knowledge concerning the needs and capacities of its drainage system.
    13. Besides repeated references in the Background Analysis to a lack of data concerning important aspects of the drainage system, the goals, objectives, and policies reflect the need for considerably more information in this area. For instance, Objectives 4.3.2 and 4.3.5 identify "needs assessments," "engineering studies," and "inspection programs" with respect to flooding and drainage that will be conducted in the future. Objective 4.3.7 ties in this work with the promise of the preparation of a surface water management plan, by October 1, 1995, to determine "existing deficiencies and needs," "cost and time requirements of corrective actions," and "sources of revenue." Policies 4.3.2.5, 4.3.5.2, 4.3.5.3, 4.3.7.1, and 4.3.7.2 also promise engineering studies to take place in the future in order to gather more information concerning drainage and the effect of stormwater on receiving waterbodies. The Background Analysis notes that no complete inventory of the drainage system has taken place for 20 years.
    14. The City requires these studies in order to determine what to do about a deficient drainage system for which no improvements are presently planned. Objective 4.3.7 acknowledges that the City has not included any improvements to its drainage or stormwater management systems for at least the initial five-year planning timeframe covered by the Plan. The Five Year Schedule of Improvements reflects no such expenditures, and the Background Analysis states that no such expenditures are planned for the next five years.
    15. As a result of the elimination of the open space/wetlands, many provisions concerning drainage and floodplain are no longer supported by the data and analysis in material respects. The data reveal the critical role of the wetlands and 100 year floodplain in the present performance of the drainage system. However, as noted above, the data also reveal that insufficient information is presently available upon which to justify the residential and commercial development of the wetlands, especially in the face of ongoing development in the 100 year floodplain.
    16. The broad promises of adequate drainage, floodplain protection, and maintenance or enhancement of the estuarine waters of the Indian River are inconsistent with the elimination of nearly all of the open space/wetlands from the Future Land Use Map and even the presence of significant development of wetlands and vacant floodplains.
    17. Under the circumstances, the Plan is internally inconsistent in its treatment of wetlands, drainage, and floodplains and, as a result of these inconsistencies, in its treatment of estuarine waters, the above-described habitats, and general water quality. The elimination from the Future Land Use Map of the open spaces hosting nearly all of the wetlands, coupled with the refusal to designate the wetlands and floodplains as natural resources on the map, are not merely inconsistent but mutually exclusive with Plan provisions protecting the above-named resources and ensuring adequate drainage. These Plan provisions lack support by the data and analysis contained in the Background Analysis. Under these conditions and in view of the failure of the City to allocate funds for improvements in the drainage system, including stormwater runoff, the Plan also lacks economic feasibility with respect to drainage and stormwater treatment.
      
      2. Consistency with the Regional Plan
    18. Several "issues" identified in the plan of the Regional Planning Council are devoted to wetlands, drainage, and floodplains. Each of these issues contains a goal, background summary, and policies.
    19. Issue 38 of the regional plan deals with the protection of water resources. After acknowledging that stormwater runoff may be the largest surface water quality problem facing the region, Policies 38.3 and 38.5 urge local governments to divert the "first flush" of stormwater to retention facilities. The policies recommend that the local governments employ the most efficient and cost-effective pollutant control techniques available and wet detention facilities, including isolated wetlands.
    20. The goal of Issue 39 is to reduce dependence on structural means of floodplain management and optimize maintenance of water-dependent natural systems. The regional plan states that wetlands assimilate nutrients and trap sediment from stormwater, as well as physically retard the movement of surface water. Policy 39.7 advises that "[n]atural, isolated wetlands should be incorporated in surface water management systems as detention facilities, where
      . . . practical and appropriate, as an alternative to filling or excavating such wetlands." Policy 39.8 adds: "Floodplains which are relatively undisturbed should be protected and preserved "
    21. The goal of Issue 40 is the protection and preservation of the region's coastal areas. The regional plan defines the "coastal zone" as "within the watersheds of coastal estuaries," including the Indian River. The background summary recognizes the adverse effects of stormwater runoff on the Indian River, which is one of two major estuaries draining the region's coastal zone. These effects include the introduction of fresh water, which kills sensitive aquatic organisms like clams and oysters, and heavy metals and other pollutants.
    22. Policy 40.1 states in part:
      
      Proposed activities which would destroy or degrade the function of coastal wetlands
      . . . should not be permitted except where such activities are clearly in the public interest and there is no practical alternative which reduces or avoids impacts to wetlands.
    23. The redesignation of the four open spaces and the elimination of wetlands as a future land use is inconsistent with Policy 40.1. The use of the advisory word "should" in Policies 38.3, 38.5, 39.7, and 39.8 militates against a finding of inconsistency based upon a small number of specific provisions containing little more than recommendations. On balance, the Plan is not inconsistent with the policies of the regional plan.
      
      3. Consistency with the State Plan
    24. Under the category of water resources, the state plan includes the following policies at Section 187.201(8)(b), Florida Statutes:
      
      2. Identify and protect the functions of water recharge areas and provide incentive for their conservation.
      
      4. Protect and use natural water systems in lieu of structural alternatives and restore modified systems.
      
      8. Encourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features.
      
      10. Protect surface and groundwater quality and quantity in the state.
      
      12. Eliminate the discharge of inadequately treated . . . stormwater runoff into the waters of the state.
    25. Under the category of natural systems and recreational lands, the state plan includes the following policies at Section 187.201(10)(b), Florida Statutes:
      1. Conserve . . . wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values.
        
        7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value.
    26. The above-cited policies are clear and specific. On balance, the Plan's treatment of wetlands, drainage, and floodplains, as well as estuarine waters, fisheries, wildlife, and vegetation habitats, and water quality, is inconsistent with the above-described policies of the state plan. On balance,
    the Plan is incompatible with and fails to further the state plan. The Plan is therefore inconsistent with the state plan.
2. Historic Resources
  1. Internal Consistency
    1. The Plan is internally consistent with respect to historic resources. No material inconsistency exists with respect to the identification and protection afforded historic resources by the Plan.
    2. All relevant provisions of the Plan are oriented toward the protection of historic resources. Objective 3.1.4 promises the protection and preservation of historically significant housing. Policy 3.1.4.7 states that the City will identify historically significant housing and structures annually. Policy 1.5.3 provides that the City will protect historic resources by the education of the public, consideration of the establishment of an historic district, and purchase of development rights. Objective 1.5 states that in one year all development must be consistent with the Plan's objectives for the protection of historic resources.
    3. The above-described objectives and policies are supported by the data and analysis. As revised, the Background Analysis contains a map entitled the Cocoa historic district and an inventory of the 72 properties depicted on the map.
    4. Rule 9J-5.006(4)(a)10., Florida Administrative Code, requires the inclusion in the Future Land Use Map of historically significant properties meriting protection and the boundaries of any historic district. In the responses to the ORC, the City states that "no . . . historic resource land use categories are applicable for the city." There is some conflict between the acknowledgement of an historic district and claim that no historic resource land use categories are applicable for the city. However, on balance, the inconsistency is immaterial. Unlike the situation with respect to wetlands, drainage, and floodplains, the Plan provisions protecting historic resources can be carried out without the designation of an historic district on the Future Land Use Map.
      
      2. Consistency with the Regional Plan
    5. Two "issues" of the plan of the Regional Planning Council are devoted to historic resources. Issue 61 concerns access to cultural and historical resources. Issue 62 concerns the development of cultural and historical programs.
    6. Policy 61.1 states that historical resources "shall" be properly identified and evaluated and "should" be protected and preserved. Policy 61.3 states that local governments should adhere to the requirements of the Act regarding the inclusion of known historically sensitive resources in existing and future land use maps and the treatment of historical resources in the coastal management element, where applicable. Policy 61.5 provides that the local government "shall," "to the maximum practical extent," avoid or reduce adverse impacts of adjacent land uses on historical sites listed or eligible for listing on the Florida Master Site File or National Register of Historic Places.
    7. Policy 62.5 states that historic resources listed or eligible for listing on the Florida Master Site File or National Register of Historic Places "shall be taken into consideration" in all capital improvement projects.
    8. The Plan could have gone farther to promote the preservation of historic resources, especially from the adverse impact of nearby development and redevelopment. The most obvious way in which to achieve this goal would be through the designation of an historic land use category. However, on balance, the Plan is not inconsistent with the policies of the regional plan.
      
      3. Consistency with the State Plan
    9. Under the category of cultural and historical resources, the state plan includes the following policies under Section 187.201(19)(b), Florida Statutes:
      
      3. Ensure the identification, evaluation, and protection of archaeological folk heritage and historic resources properties of the state's diverse ethnic population.
      1. Encourage the rehabilitation and sensitive, adaptive use of historic properties through technical assistance and economic incentive programs.
      2. Ensure that historic resources are taken into consideration in the planning of all capital programs and projects at all level of government and that such programs and projects are carried out in a manner which recognizes the preservation of historic resources.
    10. The Plan's treatment of historic resources is consistent with the above-described policies of the state plan.
3. Redevelopment Plan

The omission of the redevelopment plan earlier adopted by the City, the failure to describe in the Plan redevelopment programs, activities, and land development regulations, and the exclusion from the Coastal Management Element of a redevelopment component did not render the Plan inconsistent internally or with the regional or state plans.

CONCLUSIONS OF LAW
1. Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Sections 120.57(1) and 163.3184(9), Florida Statutes.
Under Section 163.3184(9), the purpose of the subject proceeding is to determine whether the Plan is in compliance. "In compliance" means consistent with the requirements of Sections 163.3177, 163.3178, and 163.3191, Florida Statutes, the state comprehensive plan, the Regional Planning Council
plan, and "rule" 9J-5, Florida Administrative Code. Section 163.3184(1)(b), Florida Statutes.
Sections 163.3177 and 163.3178 set forth the elements that a comprehensive plan must contain. Section 163.3191 requires periodic evaluation and appraisal reports for plans and is not relevant to the subject proceeding.
Chapter 9J-5 "establishes the minimum criteria for the preparation, review, and determination of compliance of comprehensive plans." Rule 9J-5.001, Florida Administrative Code. Although Chapter 9J-5 is largely devoted to the elements described in Sections 163.3177 and 163.3178, Rule 9J-5.004 generally tracks the statutory requirements for public participation, which are set forth at Section 163.3181, Florida Statutes.
The statutory reference to "rule" 9J-5 is clearly intended to mean "chapter" 9J-5. The meaning of the statute is obvious. A comprehensive plan must be consistent with Chapter 9J-5 to be in compliance. Therefore, the issue of public participation is an issue properly considered in the subject proceeding.
1. Standing
Section 163.3184(9)(a), Florida Statutes, allows "any affected person" to file a petition to challenge DCA's determination of compliance. An "affected person" includes persons residing within the boundaries of the local government whose plan is being challenged. Section 163.3184(1)(a). All Petitioners satisfy this requirement.
The Act requires that each person claiming to be an affected person, except for an adjoining local government, must have "submitted oral or written objections during the local government review and adoption proceedings" in order to qualify as an "affected person." Id.
The review and adoption proceedings begin with the receipt of the ORC from DCA. Section 163.3184(7), Florida Statutes. The local government then has
60 days within which to review the objections, recommendations, and comments and adopt a comprehensive plan. Id. In the present case, Cocoa received the ORC a few days after August 5, 1988, and adopted the Plan on October 4, 1988.
Petitioners Austin, Houston, and Dorn submitted oral or written objections during the period of review and adoption. They therefore qualify as "affected persons" and have standing to challenge the determination of compliance.
Petitioners Hendry did not submit oral or written objections during the period of review and adoption. They were unaware of the Plan or the planning process until after the Plan had been adopted. Their lack of knowledge was in no way attributable to the City, which amply advertised specific meetings at which the Plan or Proposed Plan was considered and discussed.
Petitioner David P. Hendry, Sr. sent a letter to the City, among other recipients, complaining about the possible siting of a marina in his neighborhood. The letter was received by the City after its receipt of the ORC. However, the letter did not constitute an objection to the Plan or any part of the planning process then underway.
The statute requires that affected persons timely submit objections to the comprehensive plan. During the 60-day review and adoption process, a local government is inevitably going to receive many oral and written comments concerning land use policies and regulations. A local government of any size daily receives petitions for variance or rezoning, which in turn may generate complaints and protests. Citizens regularly complain to their council members and city staff about specific land development projects. These petitions, complaints, and protests cannot be converted to statutory objections without seriously diluting the force of the requirement that potentially affected persons submit objections during the review and adoption process. The objections must be directed toward the comprehensive plan or the planning process in order to give the local government a chance to consider the objection and possibly eliminate the basis for it.
Petitioners Hendry may not predicate standing upon any statutory provision besides the provisions of the Act. If Petitioners Hendry fail to qualify as "affected persons," they may not derive standing as persons whose substantial interests are determined by an agency, pursuant to Section 120.57(1), Florida Statutes. The Legislature has adopted a special statutory framework for determining standing to challenge comprehensive plans. Standing as an affected person includes a broad range of persons, but the price is that the person claiming to be an affected person must have given the local government a chance to hear his objections during the review and adoption process.
The case of City of Destin v. Department of Transportation, 14 F.L.W. 711 (Fla. 1st DCA March 16, 1989), is distinguishable. In City of Destin, the city sought to litigate whether the Department of Transportation could lawfully reclassify a road and thereby transfer responsibility for road maintenance from the state to two counties. The Department of Transportation argued that the Division of Administrative Hearings lacked subject matter jurisdiction under the theory of expressio unius est exclusio alterius. Sections 305.04(1)(b)3. and 305.04(1)(c), Florida Statutes, explicitly confer jurisdiction upon the Division of Administrative Hearings with respect to two specific, somewhat narrower issues involved in the reclassification of roads. The court rejected the argument of the Department of Transportation and held that Chapter 120 confers subject matter jurisdiction upon the Division of Administrative Hearings to consider the general issue whether a road should be reclassified.
However, in this case, the replacement of the standing provision contained in Chapter 120 with the standing provisions under the Act does not deprive the potential challenger of Chapter 120 review. The Act merely requires that the challenger meet the relatively liberal definition of an "affected person" in order to obtain Chapter 120 review of his challenge. Allowing the challenger to assert standing under Chapter 120 would violate the clear legislative intent in establishing the standing provisions of the Act.
The July 31 letter does not constitute a written objection within the meaning of the statute. There was no evidence of any oral or written objection from Petitioners Hendry during the review and adoption process. Petitioners Hendry therefore are not affected persons and lack standing to challenge DCA's determination that the Plan is in compliance.
1. The Act
  1. Public Participation
It is the intent of the Legislature that the "public participate in the comprehensive planning process to the fullest extent possible." Section 163.3181(1), Florida Statutes. Local planning agencies and local governments must "adopt procedures" to provide for "effective public participation" in the planning process and to provide real property owners with notice of all official actions that will regulate the use of their property. Id. The procedures must provide for:

broad dissemination of the proposal and the alternatives, opportunity for written comments, public hearings, as provided herein, provisions for open discussion, communications programs, information services, and consideration of
and response to public comments.

Section 163.3181(2).
The reference in the above-cited statute to public hearings is to the requirements of Section 163.3184(15), Florida Statutes. This statute requires that a majority of the governing body approve the transmittal of a proposed plan and the adoption of a plan. The adoption of a plan must be by ordinance. Section 163.3184(15)(a).
The statute requires that the governing body hold at least two advertised public hearings on the proposed plan. The first hearing must be held at the transmittal stage. The hearing must take place on a weekday about seven days after the day that the first advertisement was published. The intention to hold and advertise a second hearing must be announced at the first hearing. The second hearing must be held at the adoption stage. The hearing must take place on a weekday about five days after the day that the second advertisement was published. Section 163.3184(15)(b)1. and 2.
The advertisements described in the preceding paragraph must state the date, time, place, and subject matter of the meeting and the locations at which the public may inspect the proposed plan or plan. The advertisements must also state that interested persons may appear at the meeting and be heard regarding the transmittal or adoption of the proposed plan or plan. Id.
If the proposed plan or plan changes the permitted use of land or land use categories, the advertisements must be no less than one-quarter size in a standard or tabloid-size newspaper with a headline in no smaller than 18-point type. The advertisement may not appear in the portion of the newspaper devoted to classifieds and legal notices. The newspaper must be of general paid circulation in the county and of general interest and readership in the community. If possible, the newspaper should be published at least five days a week. The advertisement must contain a geographic location map with major street names indicated. The advertisement must announce at the heading:
"NOTICE OF CHANGE OF LAND USE." The introductory paragraphs of the advertisement must be substantially in the same form as language set forth in the statute.
The City Council and Planning and Zoning Board complied with the above-cited law regarding public participation and public hearings. Although the Planning and Zoning Board evidently did not formally adopt procedures for public participation, the Board conducted its hearings in a manner consistent with the requirements of the Act concerning public participation.

Elements Required of All Plans
1. General
  1. The comprehensive plan must consist of
    
    materials in such descriptive form, written or graphic, as may be appropriate to the prescription of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.
    
    Section 163.3177(1), Florida Statutes.
  2. A "major objective" of the planning process is the coordination of the several elements of the plan with each other and the coordination of the local plan with the plans of adjacent municipalities, the county, adjacent counties, the regional plan, and the state plan. Section 163.3177(2) and (4)(a), Florida Statutes. The elements must be "consistent" and the plan must be "economically feasible." Section 163.3177(2).
  3. As noted in Paragraph 2 of the Conclusions of Law, a local plan must be consistent with the state plan and applicable regional plan. Such consistency exists if the local plan is "compatible with" and "furthers" these other plans. "Compatible with" means that the local plan is "not in conflict with" the other plan. "Furthers" means to "take action in the direction of realizing goals or policies of" the other plan. Section 163.3177(10)(a), Florida Statutes. In determining the consistency of the local plan with the state or regional plan, "the state or regional plan shall be construed as a whole and no specific goal or policy shall be construed or applied in isolation from the other goals or policies of the plan." Id.
  4. Each local comprehensive plan must consist of the following parts:
    a) goals, objectives, and policies; b) requirements for the implementation of capital improvements; c) procedures for monitoring and evaluating the plan;
    d) required maps showing future conditions; and e) a copy of the ordinance adopting the plan. Rule 9J-5.005(1)(c), Florida Administrative Code.
  5. A goal is a "long-term end toward which programs or activities are ultimately directed." Rule 9J-5.003(32), Florida Administrative Code. An objective is a "specific, measurable, intermediate end that is achievable and marks progress toward a goal." Rule 9J-5.003(57). A policy is the "way in which programs and activities are conducted to achieve an identified goal." Rule 9J-5.003(64).
  6. "All elements of the comprehensive plan . . . shall be based upon data appropriate to the element involved." Section 163.3177(8), Florida Statutes. Although the goals, objectives, and policies must be based on appropriate data, such data are not themselves subject to the compliance review process. Section 163.3177(10)(e), Florida Statutes.
  7. Each plan must address two planning timeframes: the first five years following adoption of the plan and "an overall ten-year period," which presumably must also commence with the adoption of the plan. Rule 9J-5.005(4), Florida Administrative Code.
    
    2. Future Land Use Element and Map
  8. Each plan must contain a future land use element that designates proposed future "distribution, location, and extent" of the use of land with respect to the following categories: residential, commercial, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other uses. Section 163.3177(6)(a), Florida Statutes.
  9. Rule 9J-5.006(1)(a)10., Florida Administrative Code, requires that the map reflect among other uses any "vacant or undeveloped land." A provision allows the future land use map to combine into one category the categories of educational, public buildings and grounds, and other public facilities. Rule 9J-5.006(1)(d). By negative implication, vacant or undeveloped land should not be combined with residential, commercial, or other uses.
  10. The plan must show on a land use map the future distribution, location, and extent of the various categories of land use. Goals, objectives, and policies may "supplement" the map in this regard. The maps "shall generally identify and depict historic district boundaries and shall designate historically significant properties meriting protection." Section 163.3177(6)(a), Florida Statutes.
  11. The analysis underlying the future land use element must consider the character and magnitude of existing vacant or undeveloped land to determine its suitability for use. This analysis shall include, where available, natural resources. Rule 9J-5.006(2)(b), Florida Administrative Code.
  12. The future land use element must include objectives that:
    1. coordinate future land uses with the appropriate topography, soil conditions, and the availability of facilities and services; and
    2. ensure the protection of natural resources and historic resources.
      
      Rule 9J-5.006(3)(b)1. and 4., Florida Administrative Code.
  13. The future land use element must include policies that "protect . . . environmentally sensitive land" and "identif[y], designat[e] and protect . . . historically significant properties." Rule 9J-5.006(3)(c)6. and 8., Florida Administrative Code.
  14. The future land use map must show the distribution, extent, and location of conservation use, historic districts, and historically significant properties meriting protection. Rule 9J-5.006(4)(a), Florida Administrative Code. The future land use map must show the following natural resources: the estuarine systems of shores, floodplains, and wetlands. Rule 9J-5.006(4)(b).
    
    3. Public Facilities Element
  15. The public facilities element is identified in the Act as the general sanitary sewer, solid waste, drainage, potable water, and natural groundwater element. Each plan must contain a "public facilities" element that correlates to principles and guidelines for future land use and indicates ways to provide for future drainage, among other things. The public facilities element "shall describe the problems and needs and the general facilities that will be required for solution of the problems and needs." Section 163.3177(6)(c), Florida Statutes.
  16. The data and analysis underlying the public facilities element must identify all drainage facilities and describe each facility in terms of its design capacity, current demand, and current level of service. Rule 9J- 5.011(1)(d) and (e), Florida Administrative Code.
  17. The data and analysis underlying the public facilities element must identify existing and projected drainage needs for the five-year and ten-year planning timeframes based upon analyses of facility capacity; facility design capacity and current demand; projected demand, based on current level of service standards, as a result of development permitted by local government, population growth, land use distributions as indicated in the future land use element; and available surplus capacity. Rule 9J-5.011(1)(f)1., Florida Administrative Code.
  18. The data and analysis must also assess the general performance of the existing facilities, as to the adequacy of the current level of service, their general condition and life expectancy, and the impact of such facilities upon adjacent natural resources. Rule 9J-5.011(1)(f)2., Florida Administrative Code. The data and analysis must also set forth the problems and opportunities for drainage facilities replacement and expansion. Rule 9J-5.011(1)(f)3.
  19. The public facilities element must contain objectives that "address" correcting existing facility deficiencies, coordinating increases in the capacity of facilities to meet future needs, and protecting the functions of natural drainage features. Rule 9J-5.011(2)(b), Florida Administrative Code.
    
    4. Conservation Element
  20. The plan must contain a conservation element for the conservation, use, and protection of natural resources in the area, including
    
    . . . water, water recharge areas, wetlands,
    . . ., estuarine marshes, . . . flood plains, rivers, . . . fisheries and wildlife, marine habitat, . . . and other natural and environ- mental resources."
    Section 163.3177(6)(d), Florida Statutes.
  21. The future land use map must identify and depict such conservation items as flood plains and wetlands. The land uses of the map must be consistent with applicable state laws and rules. Section 163.3177(6)(d), Florida Statutes.
  22. The data and analysis underlying the conservation element must identify and analyze rivers, wetlands (including estuarine marshes), floodplains, fisheries, wildlife, marine habitats, and vegetative communities. For each of these items, the data and analysis must identify known pollution problems. Rule 9J-5.013(1)(a) and (b), Florida Administrative Code.
  23. The conservation element must contain policies addressing implementation activities for, among other things, the protection and conservation of the natural functions of fisheries, wildlife habitats, rivers, floodplains, marine habitats, and wetlands, including estuarine marshes. These policies must also address implementation activities for the protection of "existing natural reservations" identified in the open space and recreation element and designation of environmentally sensitive lands for protection based on locally determined criteria. Rule 9J-5.013(2)(c), Florida Administrative Code.
    
    5. Housing Element
  24. The housing element of the plan must contain standards, plan, and principles for, among other things, the identification of historically significant housing. Section 163.3177(6)(f), Florida Statutes.
  25. The data underlying the housing element must include an inventory of historically significant housing listed on the Florida Master Site File, National Register of Historic Places or pursuant to a locally adopted ordinance. Rule 9J-5.010(1)(g), Florida Administrative Code.
    
    6. Capital Improvements Element
  26. The capital improvements element must consider the need for and location of public facilities in order to encourage the efficient utilization of the facilities. Among other requirements of this element are that it include standards to ensure the availability and adequacy of the facilities and estimates of the costs, revenues, and projected start-up date. Section 163.3177(2), Florida Statutes.
    
    7. Coastal Management Element
  27. Section 380.24, Florida Statutes, requires that local governments that abut the Gulf of Mexico or Atlantic Ocean, or which are contiguous to state waters that contain certain listed marine species of vegetation, shall include a "coastal zone protection element" within their plan under the Act. Under Section 380.19(2)(b), the "coastal zone" includes that "area of land and water from the territorial limits seaward to the most inland extent of maritime influences."
  28. Each plan of a local government identified in the preceding paragraph, of which Cocoa is one, must adopt a coastal management element. Section 163.3177(6)(g), Florida Statutes, requires that this element set forth policies with respect to the following objectives:
    1. Maintenance, restoration, and enhancement of the overall quality of the coastal zone environment . . .;
    
    * * *
    1. The orderly and balanced utilization and preservation, consistent with sound conservation principles, of all living and nonliving coastal zone resources;
    2. Avoidance of irreversible and irretrievable loss of coastal zone resources;
    3. Ecological planning principles and assumptions to be used in the determination of suitability and extent of permitted development;
    4. Proposed management and regulatory techniques;
    * * *
    
    10. Preservation, including sensitive adaptive use of historic and archaeological resources.
  29. Section 163.3178, Florida Statutes, is devoted entirely to the coastal management element. In it, the Legislature recognizes "significant interest in the resources of the coastal zone of the state." It is the legislative intent that comprehensive plans "restrict development activities where such activities would damage or destroy coastal resources." Id.
  30. Section 163.3178(2)(a), Florida Statutes, requires that the coastal management element contain a land use and inventory map showing existing coastal uses, wildlife habitat, wetlands, undeveloped areas, and historic preservation areas, among other features.
  31. Section 163.3178(2)(b), Florida Statutes, requires that the coastal management element contain an "analysis of environmental, socioeconomic, and fiscal impact of development and redevelopment on the natural and historic resources of the coast . . .." This subsection requires that the element analyze the required infrastructure to support the development or redevelopment and include plans and principles to "eliminate or mitigate the adverse impacts on coastal wetlands, . . . historical . . . sites, and other fragile coastal resources."
  32. Section 163.3178(2)(c), Florida Statutes, requires that the coastal management element contain an "analysis of the effects of existing drainage systems and the impact of point source and nonpoint source pollution on estuarine water quality
    . . .."
  33. Section 163.3178(2)(i), Florida Statutes, requires that the coastal management element contain a
    
    component which outlines principles for providing that financial assurances are made that required public facilities will be in place to meet the demand imposed by the completed development or redevelopment. Such facilities will be scheduled for phased completion to coincide with demands generated by the development or redevelopment.
  34. Rule 9J-5.012(3)(b), Florida Administrative Code, requires that each coastal management element contain objectives to:
    1. Protect, conserve, or enhance remaining coastal wetlands [and] living marine resources
      . . .;
    2. Maintain or improve estuarine environmental quality;
    * * *
    1. Provide for protection, preservation, or sensitive reuse of historic resources; and
    2. Establish level of service standards, areas of service and phasing of infrastructure in the coastal area.
  35. Rule 9J-5.012(3)(c), Florida Administrative Code, requires that each coastal management element contain policies to identify regulatory or management techniques for:
    1. Limiting the specific impacts and cumula- tive impacts of development or redevelopment upon wetland, water quality, [or] living marine resources . . .;
    2. Restoration or enhancement of disturbed or degraded natural resources including . . . estuaries, wetland, and drainage systems; and programs to mitigate future disruptions or degradations;
    * * *
    
    10. Historic resource protection, including historic site identification and establishing performance standards for development and sensitive reuse of historic resources;
    
    * * *
    1. Ensuring that required infrastructure is available to serve the development or
      redevelopment in the coastal area at the densities proposed by the future land use plan, consistent with coastal resource protection
      . . ., by assuring that funding for infrastructure will be phased to coincide with the demands generated by development or redevelopment;
    2. Protecting estuaries which are within the jurisdiction of more than one local government . . .[.]
    8. Miscellaneous Elements
  36. All plans must also contain traffic circulation, recreation and open space, and intergovernmental coordination elements. Section 163.3177(6)(b), (e), (h), Florida Statutes.
  37. Plans may include any number of optional elements. One of these elements is a redevelopment element, which consists of plans and programs for general community redevelopment. Section 163.3177(7)(g), Florida Statutes.
  38. The Act does not require the conversion of a redevelopment plan into an element of the comprehensive plan. If a redevelopment plan is incorporated as an element of a comprehensive plan, the elements of the comprehensive plan must satisfy the requirements of the Act, including internal consistency among all of the elements. If a redevelopment plan is not incorporated into a comprehensive plan, the provisions of the redevelopment plan must conform with the goals, objectives, and policies of the comprehensive plan. Section 163.360(2)(a), Florida Statutes.
  39. The Act does not require the inclusion of the redevelopment plan.
  The decision to include the redevelopment plan as an element of the comprehensive plan has significant consequences. The City decided not to do so. The redevelopment plan is not part of the Plan, nor, under the Act, is it required to be.
Determination of Noncompliance
1. General

In a compliance proceeding under Section 163.3184(9)(a), Florida Statutes, the Plan must be determined to be in compliance "if the local government's determination of compliance is fairly debatable."
In the planning process under the Act, DCA, not the local government, determines initially whether the plan is in compliance. Section 163.3184(8)(a), Florida Statutes. In adopting the Plan, however, Cocoa by implication determined that the Plan was in compliance.

2. Wetlands, Drainage, and Floodplains
It is not fairly debatable whether the Plan is in compliance; it is not. Sections 163.3177 and 163.3178 require internal consistency. The Plan is internally inconsistent in its treatment of wetlands, drainage, and floodplains and, as a result, in the protection of estuarine waters, various habitats, and
general water quality. The Plan is also inconsistent with the state plan in these respects.
Plan provisions protecting wetlands and floodplains and ensuring adequate drainage are not based on data appropriate to the element involved. The data do not support the assurances in the goals, objectives, and policies, especially in view of the failure to depict open space/wetlands as a land use category and wetlands and floodplains as natural resources on the Future Land Use Map.
Plan provisions regarding drainage and stormwater treatment are not economically feasible. The City is increasing the burden on its existing drainage system by declining to afford wetlands and floodplains the protection afforded by inclusion on the Future Land Use Map. Yet, the City lacks important data concerning the capacity of its drainage system and the ability, if any, of the natural components of the system to absorb additional load. The Plan does not estimate costs and identify revenue sources for infrastructure improvements that will be needed to accompany significant development in the wetlands and floodplains. The most that the Plan offers is the promise that, by late 1995, information concerning needs, costs, and revenues will be included in a Surface Water Management Plan. But if the City intends to subordinate the wetlands to residential and commercial land uses, then the present Plan must, under the Act, be the vehicle in which the City resolves these difficult issues.
The Plan is inconsistent with the Act in respects other than internal inconsistency, inadequate support in the data and analysis, and economic unfeasibility. The most important inconsistency involves the failure to comply with statutory requirements involving the contents of the Coastal Management Element.
By statutes, the wetlands north and south of Michigan Avenue and just west of U.S. Route 1 are in the coastal zone. The City has adopted a coastal area that includes the entire city, so all of the wetlands are in the coastal area. Obviously, the Indian River Lagoon is also in the coastal area.
The Act requires that the Plan contain policies that assist in the maintenance, enhancement, and restoration of the coastal zone environment; orderly and balanced utilization and preservation of all living and nonliving coastal zone resources; avoidance of irreversible and irretrievable loss of coastal zone resources; and establishment of ecological planning principles and assumptions to be used in determining the suitability and extent of permitted development. The Plan's treatment of the coastal area resources is deficient, especially after the City redesignated the open space/wetlands.

3. Historic Resources
The Plan is not inconsistent internally or with the state or regional plans with respect to the treatment of historic resources.
The Plan fails to satisfy certain statutory requirements with respect to historic resources. For example, the Plan fails to include the historic resources on the Future Land Use Map. However, the protections set forth in the Plan are sufficient to preserve the historic resources, which are amply identified in the revised Background Analysis, even though they are omitted from the Future Land Use Map.
Although the Plan may be somewhat inadequate in setting forth performance standards with respect to the preservation of historical significant property and providing generally for the sensitive adaptive use of historic resources, the Plan is not in violation of applicable law in these regards.

4. Remedial Action
In order for the Plan to be in compliance with the Act, the City must take remedial action with respect to the deficiencies noted above.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that the Department of Community Affairs determine that the Plan is not in compliance and, pursuant to Section 163.3184(9)(b), Florida Statutes, submit this Recommended Order to the Administration Commission for entry of an appropriate final order.

RECOMMENDED in Tallahassee, Florida, this 2nd day of June, 1989.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

FILED with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-6338GM AND 89-0291GM

Treatment Accorded the Proposed Findings of Petitioners Austin, Houston, and Dorn

1-16 Adopted.

17 Adopted in substance. However, Ms. Lawandales maintained in her office a color-coded map through much, if not all, of the planning process.

18-19 Rejected as subordinate. 20-21 Adopted.

Rejected to the extent that the finding suggests that the Planning and Zoning Board did not intend that the City Council adopt the Plan. Although the Planning and Zoning Board did not formally recommend adoption by the City Council, the Board intended that the City Council adopt the Plan.
Adopted.
Rejected as recitation of testimony and subordinate.
First four sentences adopted or adopted in substance. Remainder rejected as irrelevant.

26-27 Adopted in substance.

28-30 Rejected as subordinate. 31-33 Adopted in substance.

Rejected as against the greater weight of the evidence.
Adopted.
Rejected as subordinate.
Adopted in substance.

38-40 Rejected as irrelevant.

41 Rejected as subordinate.

42-43 Adopted.

44-46 Rejected as against the greater weight of the evidence.

Adopted.
Adopted in substance.

49-51 Rejected as irrelevant.

52 Rejected as against the greater weight of the evidence.

53-54 Rejected as recitation of testimony.

55 Adopted.

56-58 Rejected as irrelevant, except that the proposed finding that DCA found the Plan to be in compliance after using a balancing test is adopted in substance.

Rejected as irrelevant.
Rejected as against the greater weight of the evidence.

61-62 Adopted.

Rejected as irrelevant.
Adopted.

65-66 Rejected as irrelevant.

67-69 and 71 Rejected as legal argument.

Rejected as against the greater weight of the evidence.
Rejected as not finding of fact.

72-83 Rejected as irrelevant and against the greater weight of the evidence.

84-86 Rejected as irrelevant. Specific objectives and policies are insufficiently specific and, in certain respects, various Plan provisions represent nothing more than an intent to plan at a later date. However, such deficiencies must be evaluated in the context of all of the provisions of the entire Plan. After doing so, the only places at which the lack of specificity and deferral of planning are generate unlawful inconsistencies have been described in the recommended order.

87-91 Adopted or adopted in substance except that last sentence of Paragraph 91 is rejected as against the greater weight of the evidence.

92-93 Rejected as irrelevant.

94 Rejected as against the greater weight of the evidence. 95-98 Rejected as irrelevant.

99 and 111 Rejected as recitation of evidence.

100-110 and 112 Rejected as against the greater weight of evidence.

113 Rejected as not finding of fact as to the expertise of the witness. Rejected as against the greater weight of the evidence as to the inconsistency in the Plan's treatment of historic resources.

Treatment Accorded Proposed Findings of Petitioners Hendry

There are no rulings on the proposed findings of Petitioners Hendry due to the fact that it has been determined that they lack standing.

Treatment Accorded Proposed Findings of DCA 1-4 Adopted.

5-18 Rejected as legal argument. 19-40 Adopted.

41 Rejected as irrelevant.

42-56 Adopted.

57 First sentence rejected as against the greater weight of the evidence. Second sentence adopted.

58-69 Adopted.

70 Adopted in substance.

71-72 Adopted.

73 First sentence adopted. Second sentence rejected as against the greater weight of the evidence.

74-75 Adopted in substance.

Adopted.
Rejected as legal argument.

Treatment Accorded Proposed Findings of Cocoa I-IV Adopted or adopted in substance.

Adopted except that Paragraphs B and C are rejected as legal argument.
Adopted except that Paragraphs B.5, B.7, B.13, and B.14 are rejected as irrelevant and Paragraph B.8.f is rejected as against the greater weight of the evidence.
Adopted in substance.
Adopted or adopted in substance except that Paragraph G is rejected as against the greater weight of the evidence.

COPIES FURNISHED:

Judith E. Koons Attorney at Law

Central Florida Legal Services, Inc. 1149 Lake Drive, Suite 201

Cocoa, FL 32922

David P. Hendry, pro se

17 Riverside Drive, #2 Cocoa, FL 32922

David J. Russ, Senior Attorney Rhoda P. Glasco, Senior Attorney Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

Bradly Roger Bettin

Amari, Theriac, Roberts & Runyons

96 Willard Street, Suite 302 Cocoa, FL 32922

Thomas G. Pelham Secretary

Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

Laurence Keesey General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
=================================================================
AGENCY FINAL ORDERS
=================================================================

STATE OF FLORIDA BEFORE THE
ADMINISTRATION COMMISSION

OMEGA AUSTIN, BEATRICE HOUSTON, and MARY DORN,

Petitioners,

vs. CASE NO. 89-31
DOAH CASE NO. 88-6338GM
DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF COCOA,

Respondents.
/

DAVID P. HENDRY, SR. and LOULA P. HENDRY,

Petitioners,

vs. CASE NO. 89-31
DOAH CASE NO. 88-0291GM
DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF COCOA,

Respondents.
/

FINAL ORDER

This cause came before the Governor and Cabinet, sitting as the Administration Commission (the "Commission") on August 14, 1990, in Tallahassee, Florida.
1. Pursuant to the Amended Final Order (the "Order") rendered in this cause on September 29, 1989, this Commission retained jurisdiction to enforce the provisions of the Order and to take action dependent on whether the City of Cocoa complied with the remedial actions specified in the Order.
2. On July 31, 1990 the Department of Community of Affairs forwarded its recommendation, under the signature of its Secretary, Thomas G. Pelham, to this Commission regarding the city's conformance with the remedial actions specified in the order. The Department's recommendation is as follows:
  
  The Department received the City's proposed remedial plan amendments on December 15, 1989. After a review by the Department to determine whether the proposed
  amendments were complete, the Department mailed copies to external review agencies for their comments. The external review agencies submitted their comments to the Department on February 8, 1990. The Department notified the city on March 22, 1990, that it had no objections, recommendations or comments regarding the proposed amendments. The Department received the adopted amendments on May 30, 1990. After review, the Department found that the amendments were in compliance and were in conformance with the remedial actions in the Administration Commission's amended final order... It is the Department's position that the City of Cocoa has satisfied all of the conditions of the Administration Commission's amended final order.
  Therefore, it is recommended that the Administration Commission enter an order finding the City of Cocoa Comprehensive Plan, as amended by Ordinance No. 15-90, in compliance and concluding the commission's jurisdiction over the action.
3. In light of the Department's representations, the Commission finds the City of Cocoa Comprehensive Plan, as amended by Ordinance No. 15-90, in compliance, as "in compliance" is defined by section 163.3184(1)(b), Florida Statutes (F.S.); determines that sanctions pursuant to section 163.3184(11), F.S., are not appropriate in this case; and concludes its jurisdiction in this matter.
4. Any party to this order has the right to seek judicial review of the order pursuant to section 120.68, F.S., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Commission, Patricia A. Woodworth, Office of Planning and Budgeting, Executive Office of the Governor, Room 415 Carlton Building, 501 South Gadsden Street, Tallahassee, Florida 32399-0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal. Notice of Appeal must be filed within 30 days of the day this order is filed with the Clerk of the Commission.

WHEREFORE, the Commission finds the City of Cocoa Comprehensive Plan, as amended by Ordinance No. 15-90, in compliance.

DONE and ordered this 20th day of August 1990, in Tallahassee, Florida.

PATRICIA A. WOODWORTH

Secretary to the Administration Commission

cc:

Members of the Commission Counsel of Record

Honorable Bob Martinez Honorable Tom Gallagher

Governor Treasurer

The Capitol, PL05 The Capitol, PL11

Tallahassee, Florida 32399-0001 Tallahassee, Florida 32399-0001

Honorable Bob Butterworth Honorable Betty Castor Attorney General Commissioner of Education

The Capitol, PL01 The Capitol, PL08

Tallahassee, Florida 32399-0001 Tallahassee, Florida 32399-0001

Honorable Doyle Connor Honorable Jim Smith Commissioner of Agriculture Secretary of State The Capitol, PL10 The Capitol, PL02

Tallahassee, Florida 32399-0001 Tallahassee, Florida 32399-0001

Honorable Gerald Lewis Thomas G. Pelham

Comptroller Secretary

The Capitol, PL09 Department of Community Affairs Tallahassee, Florida 32399-0001 2740 Centerview Drive

Tallahassee, Florida 32399-2100

David J. Russ, Esquire

Senior Attorney Bradley Roger Bettin, Esquire Department of Community Affairs Attorney for the City of Cocoa 2740 Centerview Drive 96 Willard Street, Suite 302

Tallahassee, Florida 32399-2100 Cocoa, Florida 32922

David Maloney, Esquire Judith E. Koons, Esquire Assistant General Counsel Central Florida Legal Services Office of the Governor Attorneys for Petitioners

The Capitol Rockledge Plaza, Suite F Tallahassee, Florida 32399-0001 1255 South Florida Avenue

Rockledge, Florida 32955

Mr. David P. Hendry, Sr., pro se

17 Riverside Drive #2 Cocoa, Florida 32922

STATE OF FLORIDA BEFORE THE

ADMINISTRATION COMMISSION

OMEGA AUSTIN, BEATRICE HOUSTON, and MARY DORN,

Petitioners,

vs. CASE NO. 89-31

DOAH CASE NO. 88-6338GM

DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF COCOA,

Respondents.

DAVID P. HENDRY, SR. and LOULA P. HENDRY,

Petitioners,

vs. CASE NO. 89-31

DOAH CASE NO. 88-0291GM

DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF COCOA,

Respondents.

AMENDED FINAL ORDER

This cause came before the Governor and Cabinet, sitting as the Administration Commission (the `Commission) on September 26, 1989, in Tallahassee, Florida, pursuant to sections 163.3184(9)(b) and 163.3184(11), Florida Statutes (F.S.), for consideration of a Recommended Order from the Division of Administrative Hearings, and for consideration of a Joint Stipulation on Remedial Actions and Sanctions ("Stipulation") signed by parties to this proceeding, concerning the City of Cocoa's local government comprehensive plan. Based on review of the Recommended Order, a copy of which is attached as Exhibit A, and exceptions filed subsequent thereto; and consideration of the Stipulation, a copy of which is attached as Exhibit B, the commission issues its final order as follows.

BACKGROUND

This case before the commission concerns the compliance of the City of Cocoa's ("City") local comprehensive plan with the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, (the Act), and the Department of Community Affairs' (DCA) implementing rule, Chapter 9J-5, Florida Administrative Code (F.A.C.)(Rule 9J- 5). In adopting this final order, the commission acts in accordance with Chapter 163, F.S. and Chapter 28-39, F.A.C.

The statutory process for comprehensive plan adoption or amendment is established in section 163.3184, F.S. On April 26, 1988, the City of Cocoa City Council adopted Resolution No. 88-17, authorizing transmittal of its proposed comprehensive plan to the DCA. Upon receipt of the proposed plan and supporting documents, the DCA distributed them to various State, regional, and local agencies for review and comment. Based on information provided, and the analysis of its review staff, the DCA mailed its report entitled "Objections, Recommendations, and Comments for Cocoa" (ORC Report) to the city on August 5, 1988.

Following workshops and public hearings conducted by the City of Cocoa's Planning and Zoning Board and the City Council, the council adopted a comprehensive plan by Ordinance Number 20-88 on October 4, 1988, which incorporated changes made since receipt of the DCA's ORC Report. The adopted plan was transmitted to the DCA, which published its "Notice of Intent to Find the City of Cocoa Comprehensive Plan in Compliance" on November 26, 1988.

Petitioners Omega Austin, Beatrice Houston, and Mary Dorn (Austin, Houston, and Dorn), and Petitioners David P. Hendry, Sr. and Loula P. Hendry (Hendry), filed separate petitions with the DCA requesting a Division of Administrative Hearings (DOAH) hearing pursuant to section 163.3184(9), F.S. The DOAH Hearing Officer, Robert E. Meale, consolidated the proceedings and conducted a hearing in Cocoa, Florida, on April 17-21, 25-27, and May 3, 1989. This hearing included Petitioners Austin, Houston, and Dorn; Petitioners Hendry; and Respondents City of Cocoa and the DCA. The hearing officer's Recommended Order was received by the DCA on June 5, 1989; under section 163.3184(9)(b), the DCA must issue a compliance determination within 30 days. At this stage, if the agency supports its initial "in compliance" determination, the DCA may issue a final order to that effect, which parties may appeal to the judicial branch.

However, if as in the instant case, the DCA finds that the local plan is "not in compliance" following its review of the DOAH recommended order and exceptions filed in accordance with the act, DCA must submit the recommended order and timely filed exceptions to the Administration Commission for final agency action.

FINDINGS OF FACT

The commission adopts the hearing officer's Finding& of Fact Numbers 1 through 184, set out in pages 7 to 71 of the Recommended Order.
The commission notes that the Recommended Order includes Ultimate Findings Numbers 185 through 232, set out in pages 71-86 of the Recommended Order. To the extent such findings represent findings of fact, the commission adopts such findings.

CONCLUSIONS OF LAW
The commission notes that the Ultimate Findings Numbers 185 through 232 in the Recommended Order include mixed findings of fact and law. With regard to these stated findings, the commission is guided by the following:

The ultimate finding may be and usually is mixed with ideas of law or policy..." The ultimate finding is a conclusion of law or at least a determination of a mixed question of law and fact." Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 491 (1937).
(See also K. Davis, Administrative Law Text, Third Edition, at section 16.04.) The commission adopts the hearing officer's Ultimate Findings Numbers 185 through 232, except as noted in the following paragraphs.
In this proceeding, the commission is asked to reach a threshold determination concerning public participation in the local government comprehensive planning process. At the outset, the commission notes that communication at the draft and proposed plan stages can be as essential to the outcome of an effective plan as the formal adoption procedures. Furthermore, citizens should be afforded timely access and education concerning the growth management decisions entrusted to elected and appointed officials.

In considering the requirements of section 163.3181, F.S., the commission notes legislative intent that the public participate in the comprehensive planning process to the fullest extent possible. Section 163.3181(2) specifies minimum requirements for local planning agencies and local governmental units to adopt procedures that "provide for broad dissemination of the proposals and alternatives, opportunities for written comments, public hearings..., provisions for open discussion, communication programs, information services, and consideration of and response to public comments."

The commission also notes section 163.3184(1)(b) of the act, which reads as follows:

"In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C., where such rule is not inconsistent with Chapter 163, part II.

Furthermore, the commission acknowledges that Chapter 9J-5.004, F.A.C., reflects significant elements of section 163.3181 of the act concerning public participation in the comprehensive planning process. On balance, the commission concludes that the act and DCA Rule 9J-5 include public participation as an essential supporting element in preparing and adopting a local government comprehensive plan pursuant to Chapter 163, Part II, F.S., and are within the scope of compliance review under section 163.3184, F.S.

Based on the conclusion of law that public participation may be raised within a compliance review proceeding pursuant to section 163.3184, F.S., the commission adopts the Ultimate Findings of the hearing officer's Recommended Order with respect to this subject, except as noted below:
1. The commission does not adopt the first sentence of Ultimate Finding Number 185, on page 71 of the Recommended Order.
2. The commission does not adopt the first sentence of Ultimate Finding Number 186, on pages 71-72 of the Recommended Order.
3. The commission does not adopt Ultimate Finding Number
190 on page 73 of the Recommended Order.

The commission concludes that the record indicates that the City of Cocoa made a good faith effort to comply with the intent established in section 163.3181,
F.S. and Chapter 9J-5.004, F.A.C., and adopts the hearing officer's findings as
they pertain to the minimum requirements that may be addressed in this Section 163.3184 compliance review.
The commission acknowledges that provisions in the city's local comprehensive plan address historic preservation. The commission also notes its concurrence in this order with the hearing officer's finding with respect to wetlands that: "The [future land use] map is a critical component of the plan." (Recommended Order, Ultimate Finding Number 195, on page 75.) The Future Land Use Map provides an essential visible representation of the commitment to uphold local comprehensive plan goals, objectives, and policies, as supported by appropriate data and analysis to identify and protect the rich and unique heritage of historic resources.

Although the city has made significant efforts in its revised background analysis concerning protection of historic resources, the commission finds that the city's omission of historically significant properties and the boundaries of its identified historic district on its adopted Future Land Use Nap within the Future Land Use Element, does not comply with Chapter 9J-5.006(4)(a)(10), F.A.C., and section 163.3177(6)(a), F.S.
Based on the conclusion of law stated in this order with respect to historic resources, the commission does not adopt the following Ultimate Findings in the hearing officer's Recommended Order:
1. The commission does not adopt Ultimate Finding
  Number 222 on page 83 of the hearing officer's Recommended Order;
2. The commission does not adopt the first sentence of Ultimate Finding Number 223, on pages 83-84 of the hearing officer's Recommended Order;
3. The commission does not adopt the fourth and fifth sentences of Ultimate Finding Number 225, on page 84 of the hearing officer's Recommended Order;
4. The commission does not adopt the third sentence of Ultimate Finding Number 229, on page 85 of the hearing officer's Recommended Order.
5. The commission does not adopt Ultimate Finding
Number 231, on page 86 of the hearing officer's Recommended Order.
The commission adopts Conclusions of Law Numbers 1 through 66 on pages 86-107 of the Recommended Order.
The commission does not adopt the following Conclusions of Law for the reasons set out in paragraph 5 of this Order regarding historic resources:
1. The commission does not adopt Conclusion of Law
  Number 67, on page 108 of the hearing officer's Recommended Order.
2. The commission does not adopt the third sentence of Conclusion of Law Number 68.
3. The commission does not adopt Conclusion of Law
Number 69, on page 108 of the hearing officer's Recommended Order.
The commission concludes that the City of Cocoa's Comprehensive Plan is inconsistent with the requirements of Chapter 163, Part II, F.S. and Chapter 9J-
5, F.A.C., in its failure to designate wetlands and historic resources on the Future Land Use Map.
The commission concludes that the City of Cocoa's Comprehensive Plan is internally inconsistent with respect to environmental resources. The plan's goals, objectives, and policies with respect to the following elements are inconsistent with the above-noted omission of wetland resources on the comprehensive plan's Future Land Use Map: Conservation; Coastal Management; Sanitary Sewer, Solid Waste, Drainage, Potable Water and Natural Groundwater Aquifer Recharge (Public Facilities); and Recreation and Open Space.
The commission concludes that the City of Cocoa's Comprehensive Plan is internally inconsistent to the extent that facilities identified in the plan's Public Facilities Element are not reflected in the Capital Improvements Element of the plan.
The commission concludes that the City of Cocoa's Comprehensive Plan is inconsistent with the State Comprehensive Plan with respect to the protection of historic structures and historic resources.

Rulings on Exceptions by Petitioners Austin, Houston, & Dorn.
Petitioners Austin, Houston, and Dorn's first and second paragraphs do not state exceptions to the Recommended Order.
Petitioners exceptions in paragraphs 3(a), 3(b), and 3(c) are denied. The hearing officer's findings are supported by competent substantial evidence.
Petitioners fourth and fifth paragraphs do not state exceptions to the recommended order.
Petitioners exceptions stated in paragraph 6(a), 6(b), 6(c), 6(d), and 6(e) are denied. The hearing officer's findings are supported by competent substantial evidence.
Petitioners' exception stated in paragraph 6(f) is denied. The hearing officer's finding is supported by competent substantial evidence, and is subordinate to findings and conclusions of law that the city's future land use map was not adequate.
Petitioners exception stated in paragraph 6(g) is denied. The commission finds that the hearing officer's treatment accorded the proposed findings of petitioners are supported by competent, substantial evidence.
Petitioners exceptions stated in paragraph 7 are granted to the extent reflected in the remedial actions specified in this order. While the commission will not second-guess the detailed application of local adoption procedures, it does find that the minimum procedural requirements specified in the act and DCA Rule 9J-5 may be reviewed and enforced through the compliance review process established in section 163.3184, F.S.
Petitioners exception stated in paragraphs 8(a), 8(b), 8(c), and 8(d) are denied. The hearing officer's findings are supported by competent substantial evidence.
Petitioners exception stated in paragraph 8(e) is denied. There is competent substantial evidence that the letter from Petitioners Hendry to the
city did not constitute an objection to the comprehensive plan during the plan adoption process, as required by section 163.3184(1)(a) of the act.
Petitioners exception stated in paragraph 9 is denied. The hearing officer's findings are supported by competent substantial evidence.
Petitioners paragraph 10 does not state an exception to the recommended order.
Petitioners exceptions stated in paragraphs 11(a) and 11(b) are denied. The hearing officer's findings are supported by competent substantial evidence.
Petitioners paragraph 12 does not state an exception to the recommended order.
Petitioners exception stated in paragraph 13 is denied. The hearing officer's findings are supported by competent substantial evidence.
Petitioners' exception stated in paragraph 14 is denied. The hearing officer's finding and conclusion with respect to consistency with the comprehensive regional policy plan is supported by competent substantial evidence in the record. See section 163.3177(10)(a), F.S.
Petitioners exception stated in paragraph 15 is granted insofar as it is reflected in the commission's conclusions of law stated in paragraph 5 of this order; in particular with respect to the city's omission of essential information concerning historic resources on the Future Land Use Map. However, the hearing officer's finding that the city's revisions to the plan's background analysis, objectives, and policies subsequent to the DCA's ORC Report address several deficiencies noted in that report is supported by competent substantial evidence.
Petitioners exception stated in paragraph 16 is denied. The act does not require the city to adopt a redevelopment component in its local government comprehensive plan, or to incorporate its redevelopment plan into the adopted comprehensive plan. (See section 163.3177(7)(g), F.S.) However, the commission does not rule in this order on the relevance of redevelopment data and analysis as it may pertain to required plan elements.
Petitioners exceptions stated in paragraph 17 are denied. The commission finds that the hearing officer's treatment accorded the proposed findings of Petitioners Austin, Houston, and Dorn are supported by competent substantial evidence, and are subordinate or unnecessary to the determination regarding comprehensive plan compliance with the act and Chapter 9J-5, F.A.C.
Petitioners paragraph 18 does not state an exception to the Recommended Order.
Petitioners exception stated in paragraph 19 is denied. The hearing officer interpreted and applied the law correctly. Petitioners Austin, Houston, and Dorn contend that Petitioners Hendry are denied a reasonable "point of entry" to raise contentions concerning compliance of the City of Cocoa Comprehensive Plan under the ruling in Capaletti Brothers, Inc. v. State, 362 So.2d 346, 348 (Fla. 1st DCA 1978). In fact, the act provides a broad point of entry which would have allowed these petitioners relatively easy and clear entry through its definition of "affected person." The hearing officer applied the
law correctly to the established finding that Petitioners Hendry did not address their concerns to the comprehensive plan during the city's review and adoption proceedings. Thus, they did not access this point of entry provided by the act. (See section 163.3184(1)(a)).
Petitioners exception stated in paragraph 20 is denied. The hearing officer correctly applied the law with respect to Petitioners Hendry's letter and actions as they relate to the requirements established in section 163.3184(a)(1), F.S., for determining the persons or entities that are considered an "affected person" within the meaning of the act.
Petitioners exceptions stated in paragraphs 21, 21(a), 21(b), 21(c), and 21(d) regarding the City Council and Planning and Zoning Board's adoption of minimum public participation procedures are granted to the extent indicated in the remedial actions specified below, and consistent with the conclusion of law stated in paragraph 4 of this order.
Petitioners paragraph 22 does not state an exception to the Recommended Order.
Petitioners first exception in paragraph 23 is denied for the reasons stated in paragraph 29 of this order. Petitioners cite Machado v. Musgrove, 519 So.2d 629, 635 (3d DCA 1987), rev. denied, 529 So.2d 694 (Fla. 1988) in regard to the relevance of a "neighborhood area study" adopted by ordinance. The Machado ruling is distinguishable in that it applied to a matter concerning the relationship between land development regulations and a local comprehensive plan. That case is not applicable to the commission's present ruling on the threshold determination concerning required and optional elements of local government comprehensive plans.

Petitioners raise a second exception within paragraph 23 citing an ordinance adopted prior to the City of Cocoa's adoption of its revised comprehensive plan in Ordinance No. 20-88 on October 4, 1988. The hearing officer's findings are supported by competent substantial evidence on this point.

Petitioners' third exception within paragraph 23 contends that the city did not include a redevelopment component in its coastal management element as required by section 163.3178(2)(f), F.S., of the act, which reads in context as follows:

(2) Each coastal management element required by
s. 163.3177(6)(g) shall be based on studies, surveys, and data; be consistent with coastal resource plans prepared and adopted pursuant to general or special law; and contain:

... (f) A redevelopment component which outlines the principles which shall be used to eliminate inappropriate and unsafe development in the coastal areas when opportunities arise....

The City of Cocoa clearly qualifies as a unit of local government within the meaning of section 380.24, F.S., that is required to prepare a coastal management element in its comprehensive plan that meets the requirements of sections 163.3177(6)(g) and 163.3178 of the act, and Chapter 9J-5.012, F.A.C. Regarding the record presented, the commission rules that the hearing officer's findings are supported by competent substantial evidence regarding this
component. However, the commission notes as well that it has determined in paragraph 10 of this order that the city's comprehensive plan coastal element is inconsistent with respect to wetlands resources, and that remedial actions incorporated by stipulation among parties to this proceeding require specific coastal redevelopment measures.
Petitioners paragraph 24 does not state an exception to the Recommended Order.
Petitioners' exception in paragraph 25, regarding designation and protection of historic resources, is granted to the extent indicated in the commission's conclusions of law stated in paragraph 5 of this order.
Petitioners' exception in paragraph 26 is denied. The hearing officer correctly applied the applicable standard of review concerning the City of Cocoa's adopted comprehensive plan.
Petitioners exception in paragraph 27 is denied in part and accepted in part as reflected in the remedial actions specified in this order. In this exception, Petitioners contend that the hearing officer ignored 139 "inadequacies" pointed out in the DCA ORC Report. The commission will not interfere with the DCA's interpretation of the applicable provisions in Chapter 9J-5, F.A.C. except where the record indicates that the agency has clearly exceeded the bounds of the act or Rule 9J-5 in its exercise of discretion.

Ruling on Exceptions Filed By Petitioners Hendry
Petitioners Hendry's exception concerning their standing at the hearing is denied. The hearing officer's findings with respect to Petitioners' participation in the local plan adoption process are supported by competent substantial evidence. The record indicates that Petitioners Hendry did not comment on, or object to the plan prior to the October 4, 1989 City Council meeting where the ordinance adopting the plan was adopted.

While Petitioners did object to a marina project with the city and other entities during July-August 1988, they did not submit oral or written objections to the City of Cocoa concerning the comprehensive plan during the period of plan review and adoption.

The hearing officer correctly interpreted and applied the law with respect to Petitioners Hendrys' letter and actions as they relate to the requirements established in section 163.3184(a)(1), F.S., for determining the persons or entities that are considered an "affected person" within the meaning of the act.

Rulings on Exceptions Filed By City of Cocoa
The City of Cocoa's first objection is denied. The commission recognizes that the city may not have willfully eliminated wetlands from the comprehensive plan's land use element. However, there is competent, substantial evidence in the hearing officer's finding that the city did omit the identification of wetlands as a natural resource on the comprehensive plan's Future Land Use Map, and that this deficiency was indicated in the DCA's ORC Report.
The city's second exception is denied. The hearing officer's finding is supported by competent substantial evidence.
The city's third exception speaks to the lack of specificity regarding remedial actions to bring the plan into compliance in the Recommended Order.
The commission addresses these concerns in its remedial actions specified below in this order.

Rulings on Department of Community Affairs Determinations
This matter before the commission is one of first impression. As such, the commission must clarify its stance regarding cases coming before it pursuant to section 163.3184(9)(b), F.S. The commission notes that the DCA submitted the Recommended Order with "rulings" on the exceptions. Under the circumstance, the commission's role as ultimate arbiter of non-compliance determinations must ensure that it treats all parties with procedural fairness. As such, the commission will treat the department's actions as equivalent to "exceptions" and "responses to exceptions" as specified below.
The Commission interprets the DCA's concerns with paragraph 218 on page 82 of the Recommended Order within its "Determination of Plan Not in Compliance" as an "exception" timely filed. The commission denies this exception as it is raised in this case. The hearing officer's finding is supported by competent substantial evidence. However, it is also noted that this ruling is limited to the hearing officer's finding as recorded in the Recommended Order.
The commission interprets the department's actions with respect to the City of Cocoa's and Petitioners Austin, Houston, and Dorn as "Responses to Exceptions" raised by these parties.

Determination of Compliance and Order:
It is hereby concluded by the Administration Commission that the City of Cocoa's comprehensive plan, as adopted by the City Commission on October 4, 1988 is not in compliance with Chapter 163, Part II, F.S. and Chapter 9J-5, F.A.C.
Pursuant to Chapter 28-39.005, F.A.C., the department of Community Affairs has submitted recommendations as to the "remedial actions which would bring a comprehensive plan or plan amendment into compliance, as well as the type and extent of funds which should be withheld or other sanctions, as specified in s. 163.3184(11)."
Having determined that the City of Cocoa's Comprehensive Plan is not in compliance with the provisions of the act and Rule 9J-5, F.A.C., the commission orders the following remedial actions to bring the plan as adopted and submitted into compliance.
From the effective date of this order, the city shall comply with the provisions in Section I., REMEDIAL ACTIONS - REQUIRED PLAN AMENDMENTS of the Stipulation agreed to by representatives of the city, the DCA, and Petitioners Austin, Houston and Dorn, attached as Exhibit B. The commission notes that its incorporation of remedial actions specified in the Stipulation is not intended to narrow the scope or requirements of historic resource protections required by Chapter 163, F.S. and Chapter 9J-5, F.A.C.
The city shall also review, revise, and adopt its public participation procedures, guidelines and practices to ensure public participation to the
fullest extent possible in compliance with Rule 9J-5, F.A.C. and Chapter 163, Part II, F.S.
A plan amendment or amendments prepared pursuant to section 163.3187, F.S., and accomplishing the remedial actions described above shall be prepared by the city and transmitted to the DCA no later than December 15, 1989. The DCA shall, by January 15, 1990, certify to the commission that the city's plan amendment(s) has been received. In the event the plan amendment(s) has not been received by the DCA by December 15, 1989, the DCA shall immediately notify the commission; and the commission shall review the matter for implementation of sanctions pursuant to section 163.3184(11), F.S.
The DCA shall report to the commission on the progress of its review of the City of Cocoa plan amendment or amendments submitted pursuant to this Order by March 30, 1990.
The DCA shall forward a recommendation to the commission regarding the city's conformance with the remedial actions specified in this order no later than July 31, 1990. The commission shall consider the DCA's recommendation in the commission's determination of the city's conformance with the remedial actions specified in this order.
Comprehensive plan amendments outside the scope of this order shall be reviewed by the DCA in the same manner as any other plan amendment, pursuant to Chapter 163, Part II, F.S.
The fact that the Coastal Management Element is included in the commission's finding of non-compliance in this order shall be a consideration if the Department of Natural Resources is asked to issue permits under section 161.053, F.S., or if the Board of Trustees of the Internal Improvement Trust Fund is requested to sell, convey any interest in, or lease any sovereignty lands or submerged lands at any time prior to the commission's determination that the city has complied with the provisions of this order.
The commission shall retain jurisdiction for purposes of enforcing the provisions in this order. If the commission determines that the city has complied with the actions specified in this order, the commission will conclude its jurisdiction over this action. If the commission determines that the city has not complied with the remedial actions specified in this order, the commission shall review the matter for implementation of sanctions pursuant to section 163.3184(11), F.S.

DONE and ordered this 29th day of September, 1989, in Tallahassee, Florida.

PATRICIA A. WOODWORTH

Secretary to the Administration Commission

cc:

Members of the Commission Counsel of Record

Docket for Case No: 88-006338GM

Issue Date	Proceedings
Jun. 02, 1989	Recommended Order (hearing held , 2013). CASE CLOSED.

Orders for Case No: 88-006338GM

Issue Date	Document	Summary
Sep. 29, 1989	Agency Final Order
Jun. 02, 1989	Recommended Order	Plan inconsistent as to wetlands drainage and flooplain.

Source: Florida - Division of Administrative Hearings

OMEGA AUSTIN, BEATRICE HOUSTON, AND MARY DORN vs. DEPARTMENT OF COMMUNITY AFFAIRS AND CITY OF COCOA, 88-006338GM (1988)

Docket for Case No: 88-006338GM

Orders for Case No: 88-006338GM

Bradly Roger Bettin

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OMEGA AUSTIN, BEATRICE HOUSTON, AND MARY DORN vs. DEPARTMENT OF COMMUNITY AFFAIRS AND CITY OF COCOA, 88-006338GM (1988)

Docket for Case No: 88-006338GM

Orders for Case No: 88-006338GM

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Bradly Roger Bettin

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