STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS,)

)

Petitioner, )

) and METROPOLITAN DADE COUNTY, )

)

Intervenor, )

)

vs. ) CASE NO. 89-1508GM

)

CITY OF ISLANDIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 20-21, 1990, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard J. Grosso, Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Dade County: Craig H. Coller, Esquire

Dade County Attorney's Office Metro-Dade Center

Suite 2810

111 N.W. 1st Street Miami, Florida 33128-1993

For Respondent: Ana Gomez-Mallada, Esquire

Islandia City Attorney 6481 S.W. 42nd Street Miami, Florida 33155

For Tropical Dennis J. Olle, Esquire Audobon Society: 1801 S.W. 3rd Avenue

8th Floor

Miami, Florida 33129 STATEMENT OF THE ISSUES

Whether Dade County and the Tropical Audobon Society should be granted party intervenor status in this matter?

Whether the City of Islandia's adopted comprehensive plan is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes?

PRELIMINARY STATEMENT

On March 23, 1989, after determining that the City of Islandia's comprehensive plan was not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, the Department of Community Affairs (DCA, Department) forwarded the matter, by petition, to the Division of Administrative Hearings pursuant to Section 163.3184(10), Florida Statutes. On May 8, 1989, the Hearing Officer issued a notice of hearing advising the parties that a formal hearing on the petition would be held on October 11-12, 1989.

On September 5, 1989, Metropolitan Dade County filed a petition for leave to intervene as a full party petitioner in the instant case. In its petition, the County alleged that it is an adjoining local government; that the City's adopted comprehensive plan "will have a substantial impact on areas designated for protection or special treatment within the jurisdiction of Dade County;" and that the City's comprehensive plan will also "have a substantial impact on the increased need for publicly funded infrastructure to accommodate among other things water and sewer needs, solid waste disposal, and hurricane evacuation." On September 19, 1989, the Hearing Officer issued an order granting the County's petition, with the caveat that the County would "not be permitted to inject any new issues in this review proceeding" in view of the limited amount of time that remained before the scheduled commencement of the formal hearing in this matter.

On September 26, 1989, the County filed a motion requesting that the Hearing Officer modify his September 19, 1989, order "to allow issues not raised by DCA but asserted in Dade County's Petition for Intervention be heard." A hearing on the motion was conducted by telephone conference call on September 29, 1989. During the course of the hearing, counsel for DCA stated that he intended to request a continuance of the formal hearing scheduled to commence on October 12, 1989. Counsel for the City concurred that the formal hearing should be continued. By order issued October 2, 1989, the Hearing Officer granted the requested continuance as well as the County's motion seeking modification of the Hearing Officer's September 19, 1989, order. With respect to the latter ruling, the Hearing Officer explained:

Because the hearing in the instant case has been continued, it no longer appears that the County's introduction of new issues at this juncture will cause any substantial, undue delay or disruption of the proceeding.

On November 16, 1989, six days prior to the commencement of the rescheduled formal hearing, the Tropical Audobon Society (Tropical) filed a petition for leave to also intervene in this cause. A hearing on the petition was held on November 20, 1989, immediately prior to the commencement of the evidentiary portion of the formal hearing conducted in this case. The Hearing Officer reserved ruling on the petition, but afforded Tropical the opportunity to develop an evidentiary record in support of the allegations advanced in its petition that the City's comprehensive plan is not "in compliance." 1/

During the evidentiary portion of the formal hearing conducted in this cause, DCA presented the testimony of five witnesses: Michael Wright, a Planning Manager with DCA's Bureau of Local Planning; Robert Nave, Chief of DCA's Bureau of Local Planning; Larry O'Donnell, an Environmental Manager with

the Florida Department of Environmental Regulation; Mary Beth Corrigan, a Senior Planner with the South Florida Regional Planning Council; and Jose Lopez, Chief of the Wastewater Section of the County's Department of Environmental Resources Management. The County also presented the testimony of five witnesses: David Ettman, Assistant to the Director of the County's Department of Environmental Resources Management; Kathleen Hale, Director of the County's Office of Emergency Management; Harvey Kottkey, Chief of the Water Supply Section of the County's Department of Environmental Resources Management; Jean Evoy, a Principal Planner with the County's Planning Department; and Jack Pyms, Mayor of the City of Islandia. Two witnesses testified on behalf of the City: Mayor Pyms; and Stephen H. Pitkin, a planning consultant who is the President of Robert K. Swarthout, Inc.. In addition to the testimony of these witnesses, DCA, the County and the City offered into evidence a total of 28 exhibits. All of these exhibits were received into evidence by the Hearing Officer. The Tropical Audobon Society did not offer any testimony or exhibits of its own, nor did it avail itself of the opportunity to cross-examine the other parties' witnesses.

After the parties rested their respective cases, DCA moved "that the pleadings be amended to conform to whatever proof was adduced at hearing." The City indicated that it had no objection to the motion. Accordingly, the motion was granted.

At the close of the formal hearing, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 25 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the hearing transcript on December 13, 1989.

On January 5, 1990, the City filed a post-hearing submittal, which, although labelled a proposed recommended order, is more in the nature of a written offer of settlement. The City concedes the following in its submittal:

[T]he City of Islandia's Comprehensive Development Plan, although substantially in compliance, still harbors some gaps great enough to warrant its non-approval. These gaps consist largely of inadequate or insufficient data and data analysis of areas such as waste disposal and hurricane preparedness.

It then offers to make certain amendments to its comprehensive plan to cure these deficiencies if DCA awards it "a technical assistance grant in the amount of not less than $15,000."

The County, on January 5, 1990, filed a motion requesting an extension of time until January 28, 1990, to file its post-hearing submittal in the instant case. By order issued January 8, 1990, the motion was granted.

That same day, January 8, 1990, DCA filed a 50-page proposed recommended order. It was accompanied by a motion requesting permission to exceed the 40- page limit for proposed recommended orders prescribed by Florida Administrative Code Rule 22I-6.031(3). The motion is unopposed. Upon consideration, the motion is granted. On January 28, 1990, the County filed a notice that it was adopting DCA's proposed recommended order as its own. Unlike the City's post- hearing submittal, DCA's proposed recommended order contains proposed findings

of fact. These proposed findings of fact have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based on the record evidence, the Hearing Officer makes the following Findings of Fact:

The City of Islandia: General Description and Location

1. The City of Islandia is a municipality situated within the jurisdictional boundaries of Dade County, Florida. It was incorporated in 1961.

   
   

2. The City is located in an environmentally sensitive area in the southeastern corner of the county several miles east of the mainland. The City is separated from the mainland by Biscayne Bay and is accessible only by boat, seaplane, or helicopter.

   
   

3. The City consists of 42,208 acres of submerged and non-submerged land, 41,366 acres of which are owned by the federal government and are part of Biscayne National Park.

   
   

   Biscayne National Park

   
   

4. Biscayne National Park was established as a national monument in 1968. Twelve years later it was designated a national park.

   
   

5. The park was established because of the unique natural resources within its boundaries. Its designation as a national park promotes the preservation and protection of these valuable resources.

   
   

6. The park attracts visitors who engage in passive, marine-oriented recreational activities, such as fishing and snorkeling.

   
   

7. Some development has taken place within the park. Among the structures currently standing are the buildings that house the park rangers who work and reside in the park and the docks that are used by those who travel to and from the park by boat.

   
   

   The City's Privately Held Land

   
   

8. The remaining 842 acres of land in the City are owned by twelve private landowners, five of whom serve on the Islandia City Council. This land contains no infrastructure and is almost entirely undeveloped. As a result, it is in virtually pristine condition. Because the privately held land in the City is part of the same ecosystem as Biscayne National Park, the development of the privately held land will necessarily have an impact on the activities in the park.

   
   

9. Of the 842 acres of privately held land in the City only approximately three acres consist of uplands. These uplands, at their highest elevation, are only four feet above sea level. The other 839 acres of privately held land are submerged bottom lands of Biscayne Bay and the Atlantic Ocean.

   
   

10. The privately held land in the City is located in an area of coastal barrier islands known as the Ragged Keys. These islands lie between Biscayne Bay and the Atlantic Ocean. They are separated from one another by surge

    channels, through which the ocean waters enter the bay. Because of their location and low elevation, these islands are extremely vulnerable to the threat of storm surges and coastal flooding. It therefore is imperative that individuals on the islands evacuate to safety as soon as possible in advance of any storm or hurricane. 2/ The Coast Guard, which assists in the early evacuation of coastal residents, removes its assets from the water when wind speeds reach 35 miles per hour. This heightens the need for those on the islands to leave before the weather takes a turn for the worse.

    
    

11. There are five Ragged Keys in private ownership. Ragged Key One, the northernmost of these islands, is surrounded by an old, breached bulkhead.

    Tidal waters enter where the bulkhead is breached. Coastal wetland vegetation is the only vegetation found on the island.

    
    

12. Ragged Key Two is totally submerged and has no uplands. Mangroves are scattered throughout the island.

    
    

13. Unlike Ragged Key Two, Ragged Key Three includes some uplands. Its shoreline, however, is fringed with white, red and black mangroves, vegetation associated with wetlands. Mangroves play a vital role in maintaining the health of the Biscayne Bay ecosystem. They contribute a leafy matter, known as detritus, to the nutrient budget of the bay. In addition, mangroves help filter upland runoff and protect against shoreline erosion.

    
    

14. Most of Ragged Key Four is covered with mangroves. Red mangroves dominate, but there are also white and black mangroves. A narrow band of uplands, approximately 30 to 50 feet in width, runs through the center of the island. The island's upland vegetation consists of an unusual, and therefore ecologically significant, tropical hardwood hammock species not found on the mainland.

    
    

15. Ragged Key Five, the southernmost of the privately owned Ragged Keys, is completely inundated by tidal waters twice a day. The vegetation on the northern one-half to two-thirds of the island consists almost exclusively of mangroves, with white mangroves dominating. Mangroves are also found on the island's southeastern perimeter. Less than an acre of uplands lies toward the center of the island. The dominant vegetation on these uplands is Australian pine.

    
    

16. The privately held bottom lands in the City that are on the ocean side of the Ragged Keys consist of a number of species of hard coral as well as soft coral and sponges not found further to the north. Consequently, these hard- bottom communities are very significant ecologically.

    
    

17. The privately held bottomlands in the City that are on the bay side of the Ragged Keys are covered almost entirely with seagrass beds. These seagrass beds are an essential component of the bay's ecosystem. They help to maintain water quality by stabilizing and filtering sediment and serve as habitat and food for fish and other marine organisms. This is significant from not only an environmental perspective, but from an economic perspective as well, inasmuch as commercial fishing is an important industry in the area.

    
    

18. Seagrasses depend on light for their survival. If they are beneath, or otherwise shaded by, a structure, such as a "stilt home" or dock, or deprived of light as a result of construction-related turbidity, they will die.

19. Water depths in the City on both the ocean and bay side of the Ragged Keys are extremely shallow. In most areas, the depth of the water never exceeds four feet. Consequently, one has to be a competent boater to navigate in these areas without running aground.

    
    

20. Boats that travel in these shallow waters, even if piloted by competent navigators, are likely to scrape and scar the ocean and bay bottom and damage the seagrass and hard-bottom communities that exist there. Furthermore, these boats are likely to leave behind in the waters they have traversed bilge waters, oils, greases and metallic-based paints from their undersides. This has the effect of lowering water quality. Fortunately, boating activities in these waters have been limited to date and, consequently, these activities have resulted in only minor environmental damage. Substantial damage will occur, however, if boat traffic on these waters increases significantly.

    
    

    Comprehensive Plan Preparation and Adoption

    
    

21. The City's comprehensive plan was drafted by the staff of Robert K. Swarthout, Inc., a consulting firm that specializes in land use planning. Before retaining the services of the Swarthout firm, the City's governing body,

    the City Council, voted that, in the plan, all of the privately held land in the City would be designated for "residential" use and that the allowable density would be six units per acre. Sound planning dictates that such decisions be made only after the character of the land and its suitability for development are analyzed.

    
    

22. A proposed plan for the City was developed by the Swarthout firm. Following a vote of the City Council, the proposed plan was transmitted to DCA. Upon its receipt of the proposed plan, DCA distributed copies to other governmental agencies, including Dade County, and solicited their comments. After receiving these comments and conducting its own review, DCA sent to the City a report containing DCA's objections, recommendations and comments regarding the City's proposed plan. In response to this report, the Swarthout firm drafted certain modifications to the proposed plan. The proposed plan, as so modified, was adopted by the City Council on January 13, 1989, and thereupon transmitted to DCA.

    
    

23. The City Council held public hearings before transmitting the proposed plan and the adopted plan to DCA. The twelve private landowners in the City were notified of these hearings by mail. No one else, including any park ranger residing in the City or any other representative of the federal government, was given direct, individual advance notice of these hearings, nor were the hearings advertised in any newspaper or other publication. In failing to provide advance notice of these hearings to any one other than the City's twelve private landowners, the City Council relied upon the opinion of its attorney that no additional notice was necessary to meet the requirements of the law.

    
    

    Format of the City's Adopted Plan

    
    

24. The City's adopted plan focuses upon the 842 acres of privately held land in the City. It does not discuss in great detail the future of Biscayne National Park, which comprises more than 98% of the City's land area.

    
    

25. The plan consists of nine elements: future land use; transportation; housing; infrastructure; coastal management; conservation; recreation and open space; intergovernmental; and capital improvements. Each element contains goals, policies and objectives. In addition, the future land use element

    includes a future land use map and the capital improvements element includes both an implementation section and a section prescribing monitoring, updating and evaluation procedures.

    
    

26. The document containing the City's adopted plan also describes and discusses the data and analysis upon which the plan is purportedly based. According to the document, however:

    
    

    Only the following segments of this document were adopted by the City Council:

    1. Goals, Objectives and Policies

    2. Capital Improvements Element Implementation section

    3. Future Land Use map

    4. Monitoring, Updating and Evaluation Procedures

       
       

       Future Land Use Element

       
       

27. The future land use element of the City's adopted plan sets forth the following goals, objectives and policies:

    
    

    Goal 1 To provide for minimal residential development compatible with the natural resources of the National Park and balance of the islands.

    Objective 1.1 By 1994, achieve first phase new development sited appropriately for the topographic/flood conditions and infrastructure compatible with soil conditions.

    Policy 1.1.1 As the residential development occurs, require acceptable private paths, drainage, water and sewer systems through

    the development code; special care is needed due to limited wellfield and soil absorption areas.

    Policy 1.1.2 Private automobiles shall not be permitted; adequate boat or aircraft access facilities shall be required by the development code.

    Policy 1.1.3 Development permits shall be issued only if facilities meeting the following levels of service can be made available concurrent with the impacts of development:

    -Sewage disposal: septic tanks 3/ or package treatment plants providing a treatment capacity of 300 gallons per residential unit per day

    -Water: wells providing 300 gallons per residential unit per day

    -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically)

    -Solid waste: off-island disposal by individual homeowners or other property

    owners 4/

    -Circulation: pedestrian and golf cart paths

    -Open space: public and private of 175 acres per permanent resident

    Objective 1.2 Ensure reasonable protection of historic and natural resources (particularly) mangroves as development occurs. See policy for measurability

    Policy 1.2.1 Within one year of transmitting this plan, a development code will be prepared to assure adequate protection of the vegetative communities (particularly mangroves) as well as sensitive to hurricane considerations and the bay bottom ecology.

    Policy 1.2.2 The City shall consult with the National Park Service should any archaeological sites be found on the privately owned islands.

    Policy 1.3 Facilitate planned unit development projects through the 1989 adoption of a development code.

    Policy 1.3.1 Within one year of transmitting this plan, include Planned Unit Development provisions in the zoning provisions of a development code to help achieve residential development.

    Objective 1.4 By July 1989, adopt a development code to implement land use policies that correspond to the category on the Future Land Use Plan and minimize hurricane evacuation.

    Policy 1.4.1 The following land use densities, intensities and approaches shall be incorporated in the land development code; development will be required to use these densities in a mixed use Planned Unit Development format

    -Residential: Single-family detached and attached units at a density of 6 units per acre or less in a PUD mixed-use format.

    -Commercial: Supporting boat clubs/marinas, restaurants and light convenience retail; this would either be in the residential PUD or the National Park Recreation category i.e. not shown on the map.

    -Recreation and Open Space: This category includes primarily the National Park.

    
    

28. The future land use map depicts only two future land uses: "recreational," which is described on the map as constituting lands of the "National Park and City Park;" and "residential," which is indicated on the map as constituting "[l]ess than 6 units per acre in Planned Unit Developments with supporting service commercial." Because Policy 1.4.1 of the future land use element permits a maximum "residential" density in the City of "6 units per acre" whereas the future land use map reflects that the City's maximum permissible "residential" density is "less [emphasis supplied] than 6 units per acre," these two provisions of the City's adopted plan are inconsistent.

29. On the future land use map, only Ragged Keys One through Five are designated for "residential" use. The remaining land in the City, including the privately held bay and ocean bottom surrounding these islands, is designated on the map for "recreational" use.

    
    

30. There are statements in the plan document that reflect that "residential" development is contemplated not just for the five Ragged Keys, but for the entire 842 acres of privately held land in the City. Such statements include the following which are found in the discussion of the data and analysis allegedly underlying the future land use element:

    
    

    Residential Capacity- The islands under municipal jurisdiction have not been developed, and there are only 842 acres of suitable vacant land for the development of residential units. Based on the Land Use Plan PUD density of six units per acre, this

    would suggest a build-out of 5,000 housing units.

    * * * Needs Assessment: Not Applicable and Other

    Issues- There are no incompatible or blighted uses. Some private redevelopment might be involved in upgrading the boat dock and several recreational housing units.

    Rather than an analysis of the land required to accommodate the projected population, this is a case where the 842 acres of buildable private land can accommodate a build-out population of about 5,000 although 720 is projected for the year 2000 based upon a projected private market demand for development at five units per acre requiring

    78 acres.

    * * * Future Land Use Plan: Land Use Category- As

    indicated above, all non-Park Service land and bay bottom (842 acres) is designated "Residential Planned Unit Development With Supporting Commercial;" this will accommodate the projected population.

    * * *

    Future Land Use Plan: Impact- It is important to note the minimal impact that the private development area (842 acres), will have on the total area of the City which encompasses 42,208 acres.

    * * *

    Future Land Use Plan: Density- Approximately 842 acres, at a density of less than six units per acre, are proposed for development of the recreational units.

    
    

    These statements, however, are not included in those portions of the plan document that were adopted by the City Council and therefore are not part of the City's adopted plan.

31. In addition to depicting future land uses, the future land use map also shows shoreline areas. Beaches, wetlands, and flood plains, however, are not identified on the map.

    
    

    Transportation Element

    
    

32. The transportation element of the City's adopted plan contains the following goals, objectives and policies:

    
    

    Goal 1- To meet the unique circulation needs of Islandia.

    Objective 1.1- As development occurs, achieve an internal circulation system that uses paths for pedestrians, bicycles and golf carts but not automobiles.

    Policy 1.1.1- By July 1989, enact a development code that requires developers to provide such a path system, a) concurrent with development, and b) that connects with other adjacent developments and the boat dock facilities.

    Policy 1.1.2- Include development code provisions that require adequate access to the development from the mainland i.e. either by boat or aircraft facilities.

    
    

    Housing Element

    
    

33. The following goals, objectives and policies are set forth in the housing element of the City's adopted plan:

    
    

    Goal 1- To provide recreational housing units compatible with the unique locational and environmental character of Islandia.

    Objective 1.1- Achieve and maintain quality housing with supporting infrastructure.

    Policy 1.1.1- By July 1989, enact a development code that provides an expeditious review process yet assures concurrent adequate private infrastructure.

    Policy 1.1.2- Include building and property maintenance standards that will assure that units are maintained in sound condition.

    Policy 1.1.3- To assure environmentally sound design, City codes shall include building standards (sensitive to hurricanes) and site plan review.

    
    

    Infrastructure Element

    
    

34. As evidenced by the following goals, objectives and policies set forth in the infrastructure element of the City's adopted plan, the City intends that infrastructure needs will be met by private developers, rather than by the City through the expenditure of public funds:

    
    

    Goal 1- To provide adequate private infrastructure to serve the projected limited

    recreational residential development.

    Objective 1.1- Assure provision of adequate, environmentally sensitive private infrastructure concurrent with development through a 1989 development code.

    Policy 1.1.1- By July 1989, enact a development code that requires City site plan review with engineering design standards in the areas of water supply, sewage disposal, drainage, solid waste, groundwater recharge and wellfield protection plus incentives for the use of solar energy and solid waste recycling (to reduce disposal quantities by

    30 percent).

    Policy 1.1.2- Require all development to meet the following level of service standards:

    -Sewage disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day 5/

    -Water: wells providing 300 gallons per residential unit per day

    -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically)

    -Solid waste: off-island disposal by individual homeowners or other property owners.

    Objective 1.2- Encourage multi-unit water and sewer systems in order to protect the fragile environment through the 1989 development code.

    Policy 1.2.1- Include planned unit development provisions in the development code to be enacted by July 1989 thereby encouraging joint systems rather than individual wells and septic tanks. 6/

    Policy 1,3- Protect wellfield aquifer recharge areas from development.

    Policy 1.3.1- By 1991, enact development code provisions that require developers to designate their wellfield aquifer recharge areas, and authorize the City to then prohibit development within said areas and related drainage systems.

    Objective 1.4- Each developer shall provide a mechanism for water conservation.

    Policy 1.4.1- At the time building permits are issued for the first development, the City and developer shall jointly prepare a water conservation plan for normal and emergency consumption.

    
    

    Coastal Management Element

    
    

35. The City's adopted plan contains the following goals, objectives and policies relating to coastal management:

    
    

    Goal 1- To conserve, manage and sensitively

    use the environmental assets of Islandia's coastal zone location.

    Objective 1.1- Through the 1989 development code adoption, continue to protect the barrier island function and wildlife habitat.

    Policy 1.1.1- Retain the integrity of the islands by strictly regulating shoreline dredge and fill through the development code.

    Policy 1.1.2- Require common open space in conjunction with private development to retain wildlife habitats, wetlands and mangroves and assist in preservation of marine water quality and living resources.

    Objective 1.2- Through the 1989 development code adoption, include estuarine protection policies and thus assure environmental quality.

    Policy 1.2.1- The development code shall result in drainage, sewage disposal and shoreline setback policies that protect the estuary.

    Policy 1.2.2- As private development occurs, the City shall use the County's Biscayne Bay Aquatic Preserve Management Plan as a basis for review and maintain liaison with the Biscayne Bay Management Committee's staff.

    This will also be the vehicle for coordinating with the City of Miami (which is some 10 miles to the north) in terms of estuarine.

    Objective 1.3- Continue the current pattern which is all uses, including shoreline uses, are water dependent.

    Policy 1.3.1- Use the development code to maintain a shoreline use pattern that is either park, natural private land or residential with supporting boat facilities; by definition, all Islandia uses are water dependent.

    Objective 1.4- Protect the current natural beach and dune configuration.

    Policy 1.4.1- Through the development code, require any private development to a) setback far enough from the beach to retain the dunes and b) retain the related vegetative cover and wetlands or mitigate on a fair value ratio.

    Goal 2- To minimize hurricane damage both to property and people.

    Objective 2.1- Continue the current City policy of not providing infrastructure unless public safety or natural resource preservation so requires.

    Policy 2.1.1- The City shall not program any municipal infrastructure; private development will provide its own circulation, water and sewer systems.

    Objective 2.2- Residential development will be limited in amount and density, and setback from the shoreline due to the coastal high hazard area location.

    Policy 2.2.1- Maintain density controls so that the City will experience only limited new residential development and thereby not jeopardize hurricane evacuation capabilities or undue concentration on the private islands which are the high hazard area. (Analysis explains why directing population away from the coastal high hazard area is not feasible.) 7/

    Objective 2.3- By July 1989, adopt development code provisions that assure adequate boat evacuation capability by developers and occupants.

    Policy 2.3.1- The development code shall require, as a condition of development permit approval, an evacuation plan showing adequate boat or aircraft capability.

    Objective 2.4- By 1993, prepare an emergency redevelopment plan.

    Policy 2.4.1- By 1993, the first phase of residential development should be underway; that will permit preparation of a realistic post-disaster redevelopment plan. Currently there is little to "redevelop."

    Objective 2.5- Preserve both resident and general public access to the beach.

    Policy 2.5.1- Over 98 percent of Islandia's area is public land with shoreline access. However, the remaining two percent should be developed so as to maximize resident beach access through planned unit development requirements. 8/

    Objective 2.6- The City's objective is not to provide any public infrastructure; private developers shall provide infrastructure in conformance with level of service standards, concurrent with development.

    Policy 2.6.1- Developers shall provide infrastructure, with a design sensitive to hurricane vulnerability, concurrent with the impact of development within a development code concurrency management system and in keeping with the following levels of service:

    -Sewage Disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day. 9/

    -Water: wells providing 300 gallons per residential unit per day.

    -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically).

    -Solid Waste: off-island disposal by individual homeowners or other property owners.

    Conservation Element

    
    

36. The following goals, objectives and policies are found in the conservation element of the City's adopted plan:

    
    

    Goal 1- To preserve and enhance the significant natural features of Islandia.

    Objective 1.1- Continue policies that help achieve compliance with State Department of Environmental Affairs [sic] air quality regulations; see policy for measurability.

    Policy 1.1.1- Continue to prohibit automobiles in the City.

    Objective 1.2- By July 1989, require drainage practices that avoid direct development runoff into the ocean or bay.

    Policy 1.2.1- By July 1989, enact development code provisions that require on-site runoff detention.

    Objective 1.3- By July 1989, achieve protection of existing vegetation and wildlife communities.

    Policy 1.3.1- By July 1989, enact development code provisions that require retention of a percentage 10/ of prime vegetative cover and wildlife habitat; particularly mangroves.

    Policy 1.3.2- These development regulations shall also address preservation/mitigation of the scattered island wetlands and related soils.

    Policy 1.3.3- Work with Federal park officials to assure that any National Park improvements are sensitive to the mangrove and other environmentally sensitive vegetative/wildlife/ marine habitats.

    Objective 1.4- By July 1989, have basis to avoid development activities that adversely impact the marine habitat.

    Policy 1.4.1- By July 1989, enact development code provisions that control dredge and fill activities, and boat anchorages in order to protect the marine and estuarine character, including the fish feeding areas on the Biscayne Bay side of the islands; special care must be taken to avoid any disruption of the tidal channels between the islands.

    Objective 1.5- When development occurs, achieve carefully located and designed well and sewage disposal systems.

    Policy 1.5.1- By July 1989, enact development code provisions that require City technical review of all well and sewage disposal systems to assure well water protections, groundwater conservation and sewage effluent control.

    Policy 1.5.2- When the first phase residential

    development permits are issued, develop an emergency water conservation program.

    
    

    This element of the City's adopted plan does not contain a land use and inventory map showing wildlife habitat and vegetative communities.

    
    

    Recreation and Open Space Element

    
    

37. The recreation and open space element of the City's adopted plan prescribes the following goals, objectives and policies:

    
    

    Goal 1- To provide recreation facilities and open space which are responsive to the leisure-time needs of residents.

    Objective 1.1- By July 1989, achieve controls that achieve common access to the bay and the ocean.

    Policy 1.1.1- The City shall enact development code provisions that protect common access to the shoreline as development occurs.

    Objective 1.2- By July 1989, assure private recreational resources in the limited development projects to complement the National Park.

    Objective 1.2.1- The City shall enact development code provisions that require private recreational facilities for developments over a certain size, to complement the public National Park.

    Policy 1.3.1- The City shall urge Congress to retain the National Park thereby providing a Level of Service of at least 57 acres of public open space per permanent resident prior to the year 2000. 11/

    Objective 1.4- Ensure the preservation of public and private open space.

    Policy 1.4.1- By July 1989, enact development code regulations to assure preservation of adequate private open space in conjunction with private development.

    Policy 1.4.2.- Work with Congress and National Park Service to assure preservation of this public open space resource.

    Policy 1.4.3- The City shall retain City Key in its ownership for potential use as a municipal park.

    
    

    Intergovernmental Element

    
    

38. The following goals, objectives and policies in the City's adopted plan address the matter of intergovernmental coordination:

    
    

    Goal 1 - To maintain or establish processes to assure coordination with other governmental entities where necessary to implement this plan.

    Objective 1.1- By 1994, at least three of

    the seven issues listed in the Analysis shall be the subject of formal agreement, assuming development review has been initiated.

    Policy 1.1.1- The Mayor shall oversee the implementation of the recommendations outlined in the Analysis section of this element.

    Policy 1.1.2- In particular, the Mayor shall work with County Office of Emergency Management relative to hurricane warning and evacuation mechanisms.

    Policy 1.1.3- The City shall continue to work with the County and Regional planning agencies in an attempt to reach consensus

    on a mutually agreeable land use designation for the private islands.

    Policy 1.1.4- If necessary, the City shall use the South Florida Regional Planning Council to assist in the mediation of any major intergovernmental conflicts; the County land use plan is a potential example.

    Policy 1.1.5- After development is initiated, the Mayor shall annually issue a report outlining the services the City is providing and providing information on intergovernmental coordination.

    Policy 1.1.6- The City shall review all development applications in the context of the Biscayne Bay Aquatic Management Plan and maintain liaison with the staff to the Committee responsible for this plan.

    Objective 1.2- The Mayor shall meet at least annually with the National Park Superintendent to coordinate the impact of the City's development upon adjacent areas.

    Policy 1.2.1- City officials shall maintain liaison with the National Park Service on any land use or development impacts along their common boundaries.

    Objective 1.3- By 1999, assure level of service standards coordination with the County relative to solid waste.

    Policy 1.3.1- As first phase development is completed, City officials shall work with County officials on the long range implications of solid waste disposal to determine adequacy and approach.

    
    

39. The "seven issues listed in the [intergovernmental] Analysis" section of the plan document (reference to which is made in Objective 1.1) concern the following subjects: land uses and densities; historic resources; private holdings within the National Park; permitting for construction and related infrastructure; solid waste; Biscayne Bay water quality; and emergency evacuation.

    
    

40. The "land uses and densities" issue raised in the Intergovernmental Analysis section of the plan document relates to the alleged inconsistency

    between the City's plan and Dade County's plan regarding the land use designation of the privately held land in the City. It is asserted in this section of the document that the "Metro-Dade Comprehensive Plan shows the privately owned land in Islandia as 'Parks and Recreation' rather than residential." The following recommendation to resolve this alleged conflict is then offered:

    
    

    To date, the coordination on this issue has been sporadic. 12/ If neither the County nor National Park Service are willing to acquire these islands at a fair price, then the County plan should be amended to show them as residential. The Regional Planning Council can serve as a mediator.

    
    

41. Dade County's adopted plan provides the following explanation of the significance of a "Parks and Recreation" land use designation in terms of the development potential of the land so designated:

    
    

    Both governmentally and privately owned lands are included in areas designated for Parks and Recreation use. Most of the designated Privately owned land either possess outstanding environmental qualities and unique potential for public recreation, or is a golf course included within a large scale development. The long term use of such golf courses is typically limited by

    deed restriction. If the owners of privately owned land designated as Parks and Recreation choose to develop before the land can be acquired for public use, the land may be developed for a use, or at a density comparable to, and compatible with surrounding development providing that such development is consistent with the goals, objectives, policies of the CDMP (the County's plan). This allowance does not apply to land designated Parks and Recreation that was set aside for park or open space use as a part of, or as a basis for approving the density of, a residential development.

    Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational or entertainment, or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to

    the site and its resources.

    Some of the land shown for Parks is also environmentally sensitive. These areas include tropical hardwood hammocks, high- quality Dade County pineland, and viable

    mangrove forests. Some sites proposed for public acquisition under Florida's Conservation and Recreational Lands (CARL) program are identified in this category on the LUP (Land Use Plan) map although they may be as small as ten acres in size. Many of these areas are designated on the LUP map as "Environmentally Protected Parks" however, some environmentally sensitive areas may be designated simply as Parks and Recreation due to graphic restraints. All portions of parkland designated Environmentally Protected Parks or other parkland which is characterized by valuable environmental resources is intended to be managed in a manner consistent with the goals, objectives, and policies for development of the applicable environmental resources or protection area.

    
    

    Because it is an environmentally sensitive area, the City of Islandia, including the five Ragged Keys, has been designated "Environmentally Protected" parkland on the County's future land use map. Under the County's plan, the maximum density permitted on land so designated is one unit per five acres.

    
    

42. With respect to the issue of historic resources, it is stated in the Intergovernmental Analysis section of the document containing the City's plan that the preservation of such resources within Biscayne National Park is the responsibility of the "National Park Service working with the State Bureau of Historic Preservation (within the Department of State) and the County Historic Preservation Division."

    
    

43. Regarding the matter of private holdings within Biscayne National Park, the assertion is made in the Intergovernmental Analysis section of the plan document that "[a]lthough existing formal agreements exist relative to individual life estates and long-term leases by private owners within the Park, there is a need for a formal agreement relative to joint development review and agreements between the National Park Service and the City."

    
    

44. As to permitting requirements, the Intergovernmental Analysis section of the plan document acknowledges "the array of permits required [from federal, state and county agencies] for private development and related infrastructure" in the City. In view of the regulatory authority of these agencies, the recommendation is made that the "City development code should establish a systematic review process flow chart meshing with the concurrency management system."

    
    

45. Concerning the issue of solid waste, it is suggested in the Intergovernmental Analysis section of the plan document that "once first phase development is completed, the off-island disposal of solid waste by residents should be monitored for effectiveness" and if "this system is not working, a City-County collection arrangement would have to be developed."

    
    

46. With respect to the issue of the water quality of Biscayne Bay, it is noted in the Intergovernmental Analysis section of the plan document that the County's "Biscayne Bay Aquatic Preserve Management Plan (Biscayne Bay Management Plan) can serve as a guide to intergovernmental estuary planning and protection

    as development occurs" and that therefore the "City should consult with the [County's Biscayne Bay Management Committee] staff when development proposals reach preliminary status." 13/ The Biscayne Bay Management Plan is codified in Chapter 33-D of the Metro-Dade County Code. It identifies guidelines and objectives designed to optimize the quality and quantity of marine life in the bay, to protect the bay's endangered and rare plants and animals, and to avoid irreversible and irretrievable loss of the bay's resources. The following are among the guidelines set forth in the plan:

    
    

    1. Coastal construction should be compatible with the Bay's natural features. . .

       * * *

       8. Siting of new marinas and docking facilities should avoid use of shoreline areas containing viable submerged communities and near-shore areas of inadequate navigational depths. Such facilities should not negatively impact existing water quality.

       * * *

       1. The total impact from the many individual development or user activities along the Bay shoreline should not be allowed to negatively affect the Bay's biological, chemical or aesthetic qualities.

       2. Facilities in and over Bay waters and its tributaries should only be constructed if their development and use are water- dependent.

       
       

47. Concerning the issue of emergency evacuation, the observation is made in the Intergovernmental Analysis section of the document that the "City's hurricane vulnerability makes an effective early warning imperative." It is therefore recommended that "[w]hen development occurs, the City should formalize an arrangement with the County 14/ including formal contacts, evacuation route/shelter designations and boat monitoring mechanism." 15/

    
    

    Capital Improvements Element

    
    

48. The capital improvements element of the City's adopted plan establishes the following goals, objectives and policies:

    
    

    Goal 1- To undertake municipal capital improvements when necessary to complement private new development facilities, within sound fiscal practices.

    Objective 1.1- The Mayor shall annually monitor public facility needs as a basis for recommendations to the City Council.

    Policy 1.1.1.- Engineering studies shall form the basis for annual preparation of a five- year capital improvement program, including one year capital budget if and when such municipal projects are deemed necessary.

    This element shall be reviewed annually.

    Policy 1.1.2- Overall priority for fiscal planning shall be those projects that

    enhance residential development and the environment, as per Land Use Plan.

    Policy 1.1.3- In setting priorities, the following kinds of criteria will be used:

    -Public Safety implications: a project to address a threat to public safety will receive first priority.

    -Level of service or capacity problems: next in priority would be projects needed to maintain the stated Level of Service.

    -Ability to finance: A third criteria is the budgetary impact; will it exceed budget projections?

    -Quality of life projects: lowest priority would be those projects not in categories 1 or 2 but that would enhance the quality of life.

    -Priority will be given to projects on islands experiencing development.

    Policy 1.1.4- Pursue a prudent policy in terms of borrowing for major capital improvements; in no case borrow more than two percent of the total assessed value in any one bond issue or loan.

    Objective 1.2- By July 1989, the City shall adopt a development code containing a concurrency management system to integrate the land use plan, capital improvement element and levels of service.

    Policy 1.2.1- City officials shall use both the Future Land Use Plan and financial analyses of the kind contained herein as a basis for reviewing development applications, in order to maintain an adequate level of service; all except parks are expected to be private:

    -Sewage disposal: septic tanks or package treatment plants providing treatment capacity of 300 gallons per residential unit per day 16/

    -Water: wells providing 300 gallons per residential unit per day

    -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically)

    -Solid Waste: off-island disposal by individual homeowners or other property owners

    -Public open space: 57 acres per permanent resident

    Objective 1.3- Major future development projects shall pay their fair share of the capital improvement needs they generate.

    Policy 1.3.1- The proposed development code and related review process shall require on-site detention and drainage structures

    acceptable to regional environmental agencies plus private water and sewer systems.

    Policy 1.3.2- The development code preparation shall include the consideration of impact fees.

    Policy 1.3.3- Pedestrian paths shall be installed as a part of all new development.

    Objective 1.4- Achieve mechanisms whereby public and private facility requirements generated by new development are adequately funded in a timely manner.

    Policy 1.4.1- The development code shall specify that no development permit shall be issued unless assurance is given that the private (or possibly public) facilities necessitated by the project (in order to meet level of service standards) will be in place concurrent with the impacts of the development.

    
    

49. The capital improvements element of the City's adopted plan also contains an Implementation section which provides as follows:

    
    

    Five-Year Schedule of Capital Improvements

    
    

    Not applicable; no deficiencies and no projects planned for 1990-1994 period.

    
    

    Programs

    
    

    For purposes of monitoring and evaluation, the principal programs needed to implement this Element are as follows:

    1. Initiate an annual capital programming and budgeting process as soon as warranted by prospective projects; use project selection criteria.

    2. Use engineering or design studies to pinpoint the cost and timing of any potential needs or deficiencies as they are determined.

    3. Amendments to the development code to a) assure conformance to the "concurrency" requirements relative to development orders, levels of service and public facility timing, and b) explore selected impact fees e.g. for park, boat dock and beach renourishment.

       
       

       Data and Analysis

       
       

50. If a comprehensive plan is to be an effective tool in managing a community's future growth and development, it must be based, not upon unsubstantiated assumptions or wishful thinking, but rather upon appropriate data and reasoned analysis of that data. Typically, the first step in developing a comprehensive plan is to ascertain the projected population of the community. Once such a projection is made, the amount of land needed to accommodate the projected population must then be determined. The analysis does not end there, however. Before any decision is made regarding how, and to what

    extent, the community's land will be used in the future to meet the needs of the projected population, the character of the land, including its soils, topography, and natural and historic resources, must be examined so that its suitability for development can be determined. Only after such a suitability determination is made and the carrying capacity of the land is evaluated is it appropriate to assign land use designations and densities.

    
    

51. The City Council did not follow this conventional approach in developing its comprehensive plan. Instead, it used a methodology that is fundamentally flawed and not professionally accepted. Without collecting and analyzing available information concerning the amount of land needed to accommodate the City's future population and the character and suitability of the City's land to meet the needs of the population, it arbitrarily determined at the outset of the planning process that the privately held land in the City would be designated for "residential" use and that a maximum density of six units per acre would be allowed. It appears that the City Council simply assumed, based on nothing more than the fact that the land was in private ownership, that it was suitable for residential development at six units per acre. Had the City Council examined the information that was readily available to it concerning the character of the privately held land in the City, it undoubtedly would have realized that such land is actually unsuitable for such intense residential development.

    
    

52. The City Council, through its consultant, the Swarthout firm, subsequently, but prior to the January 13, 1989, adoption of the City's plan, projected the population of the City and the amount of land needed to accommodate the anticipated population. It estimated that the City's population would be about 300 in 1994 and approximately 720 in the year 2000 and that 78 acres of land would be needed to accommodate the projected population in the latter year. These projections, however, were not made pursuant to a professionally accepted methodology inasmuch as they were based, at least in part, upon the preconceived notion that the City's plan should permit residential development of the privately owned land in the City at a density of six units per acre.

    
    

53. In making these projections, the City Council assumed that all of the 842 acres of privately held land in the City would be subject to residential development. The future land use map adopted by the City Council, however, designates only a small portion of that land, the approximately 12 acres comprising the five Ragged Keys, for residential use. This is considerably less land than that the City Council projected would be needed to accommodate the City's population in the year 2000.

    
    

54. The final land use decisions reflected on the future land use map were not the product of a thoughtful and reasoned analysis of issues that should have been considered before such decisions were made.

    
    

55. The City Council failed to adequately consider and analyze, among other things, the following significant matters before making these decisions and adopting the City's comprehensive plan:

    
    

    1. the character of the five Ragged Keys and their suitability for residential development at a density of six units per acre, particularly in light of their location in a flood prone area;

    2. the adverse impact that such development, including related housing and infrastructure construction activities, would have on the area's natural resources and fragile environment; 17/

       
       

    3. whether the potable water 18/ and sanitary sewer needs generated by such development can be met given logistical and environmental constraints; 19/

       
       

    4. the financial feasibility of, and problems associated with, siting infrastructure on the land to be developed; 20/

       
       

    5. whether the future residents of the City can be safely evacuated from the City in the face of a hurricane or tropical storm given the City's location in a coastal high-hazard area accessible from the mainland only by water and air; 21/ and

       
       

    6. the need for boat docking and other water-dependent facilities.

    
    

56. The City's adopted plan therefore is not supported by appropriate data and analysis.

    
    

    The Regional Plan for South Florida

    
    

57. The South Florida Regional Planning Council has adopted a Comprehensive Regional Policy Plan (Regional Plan) to guide future development in Broward, Dade and Monroe Counties. The Regional Plan addresses issues of regional significance.

    
    

58. Goal 51.1 of the Regional Plan provides as follows:

    
    

    By 1995 the amount of solid waste placed in landfills will be reduced by 30 percent over the 1986 volume.

    
    

    A local government's comprehensive plan must establish a level of service for solid waste disposal if it is to be consistent with, and further, this goal of the Regional Plan. The City's comprehensive plan does not do so.

    
    

59. Goal 57.1 of the Regional Plan states as follows:

    
    

    New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided.

    
    

    The City's comprehensive plan contemplates new development in areas where there are no existing nor planned public facilities. Although the plan suggests that infrastructure will be provided by private developers, there is no indication that any consideration was given to the costliness of such a venture.

    
    

60. Goal 58.1 of the Regional Plan imposes the following requirement:

    
    

    Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of development on the surrounding environment.

    The State Comprehensive Plan

    
    

61. The State of Florida also has a comprehensive plan. The State Comprehensive Plan confronts issues of statewide importance. Among other things, it requires "local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents [and] to adopt plans and policies to protect public and private property and human lives from the effects of natural disasters." It also reflects that it is the policy of the State to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development" and to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources."

    
    

    Dade County

    
    

62. Dade County is a political subdivision of the State of Florida.

    
    

63. It has regulatory authority over the tidal waters, submerged bay bottom and coastal wetlands in the City of Islandia. It also has the authority under its Home Rule Charter to prescribe appropriate land uses and planning principles for the entire area within its territorial boundaries. Dade County municipalities, however, are free to deviate from the County's plan in fashioning a comprehensive plan of their own.

    
    

64. If the residential development permitted by the City's adopted plan occurs, it will have a substantial adverse impact on areas within Dade County's jurisdiction, including Biscayne Bay, which have been designated as areas warranting protection and special treatment.

    
    

    Tropical Audobon Society

    
    

65. The Tropical Audobon Society is a not-for-profit Florida corporation which engages in educational, scientific, investigative, literary and historical pursuits relating to wild birds and other animals and the plant, soil, water and other conditions essential to their development and preservation.

    
    

66. On occasion, Tropical and its members engage in activity in the City of Islandia. They participate from time to time in census surveys of the City's bird population. In addition, they conduct tours through the City for people who want to observe the area's wildlife.

    
    

67. The overwhelming majority of Tropical members are South Floridians. None of its members, however, reside or own land in the City of Islandia.

    
    

68. Neither Tropical, nor anyone acting on its behalf, submitted oral or written objections during the City Council proceedings that culminated in the adoption of the City's comprehensive plan.

    
    

    CONCLUSIONS OF LAW

    
    

    General Legal Principles

    
    

69. Counties and incorporated municipalities in the State of Florida are required, pursuant to Chapter 163, Part II, Florida Statutes, (otherwise known as the Local Government Comprehensive Planning and Land Development Regulation Act and referred to herein as the Act) to prepare and adopt comprehensive plans of the type and in the manner prescribed by the Act.

70. A local government's adopted comprehensive plan is subject to review by the Department of Community Affairs under the Act. The purpose of such review is to determine whether the plan is "in compliance." Section 163.3184(8), Fla. Stat.

    
    

71. "In compliance," as used in Section 163.3184, Florida Statutes, "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." Section 163.3184(1)(b), Fla. Stat.

    
    

72. Section 163.3177, Florida Statutes, describes the "[r]equired and optional elements of comprehensive plan [s]" and the "studies and surveys" upon which they must be based.

    
    

73. Section 163.3178, Florida Statutes, prescribes the contents of the coastal management element, which is a required element for all counties and municipalities that, like the City of Islandia, abut "the Gulf of Mexico or the Atlantic Ocean, or which include or are contiguous to waters of the state where marine species of vegetation listed by rule pursuant to s. 403.817 constitute the dominant plant community." Section 380.24, Florida Statutes.

    
    

74. Section 163.3191, Florida Statutes, imposes requirements relating to a local government's evaluation and appraisal of its comprehensive plan following the plan's adoption.

    
    

75. Chapter 9J-5 of the Florida Administrative Code contains the rule provisions adopted by the Department of Community Affairs pursuant to Section 163.3177(9), Florida Statutes, which set forth the "minimum criteria for review of comprehensive plans and determination of compliance."

    
    

76. The state comprehensive plan was adopted by the Legislature in accordance with the provisions of Section 186.008, Florida Statutes. It is found in Chapter 187, Florida Statutes. The plan is "a direction-setting document" that provides "long-range policy guidance for the orderly social, economic, and physical growth of the state." Section 187.101, Fla. Stat.

    
    

77. The appropriate regional policy plan in the instant case is the plan adopted by the South Florida Regional Planning Council pursuant to Section 186.508, Florida Statutes. The council is responsible for regional planning activities in the South Florida region, which includes Broward, Dade and Monroe Counties.

    
    

78. The Legislature has mandated that the following guidelines be followed in determining whether a local government's comprehensive plan is consistent with the requirements of the state comprehensive plan and the applicable regional policy plan:

    
    

    [A] local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means to take action in the direction of realizing goals and policies of the state or regional plan. For the purposes of determining consistency with the state comprehensive plan or the appropriate regional

    policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan.

    
    

    Section 163.3177(10)(a), Fla. Stat.

    
    

79. If the Department of Community Affairs determines following its review of a local government's adopted comprehensive plan that the plan is not consistent with the requirements of Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, Chapter 9J-5, Florida Administrative Code, the state comprehensive plan and the appropriate regional policy plan, it is required to issue and then transmit to the Division of Administrative Hearings a notice of its intent to find the plan not "in compliance."

    
    

80. After receiving the Department's notice of intent, the Division of Administrative Hearings is responsible for assigning a hearing officer to conduct "a proceeding under s. 120.57 in the affected local jurisdiction." Only the Department, the affected local government and "affected persons" who intervene are entitled to participate as parties in such a proceeding. Section 163.3184(10)(a), Fla. Stat. For purposes of ascertaining whether a would-be intervenor is an "affected person" entitled to participate as a party in the proceeding, the following definition set out in Section 163.3184(1)(b), Florida Statutes, must be applied:

    
    

    "Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that adoption of the plan as proposed would produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction.

    Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written objections during the local government review and adoption proceedings.

    
    

    The burden is on the would-be intervenor to establish that he qualifies as an "affected person" under this statutory definition. See Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412,

    414 (Fla. 4th DCA 1974)("burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal'").

    
    

81. "In the proceeding, the local government's determination that the comprehensive plan . . . is in compliance is presumed correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan . . . is not in compliance. The local government's determination that elements of its plan are related to and consistent with each other shall be sustained if the determination is fairly debatable." Section 163.3184(10)(a), Fla. Stat.

82. The hearing officer assigned the case must weigh the evidence adduced at hearing against these standards and submit a recommended order containing his or her findings to the Administration Commission for final agency action. Section 163.3184(10)(b), Fla. Stat.

    
    

83. If the Administration Commission finds that the plan is not "in compliance," it must "specify remedial actions which would bring the comprehensive plan . . . into compliance." Furthermore, in the exercise of its sound discretion, it may impose the following penalties upon the offending local government:

    
    

    1. . . . The commission may direct state agencies not to provide funds to increase the capacity of roads, bridges, or water or sewer systems within the boundaries of those local

       governmental entities which have comprehensive plans or plan elements that are determined not to be in compliance. The commission order may also specify that the local government shall not be eligible for grants administered under the following programs:

       1. The Florida Small Cities Community Development Block Grant Program, as authorized by ss. 290.041-290.049.

       2. The Florida Recreation Development Assistance Program, as authorized by chapter 375.

       3. Revenue sharing pursuant to ss. 206.60, 210.20, and 218.61 and part I of chapter 212, to the extent not pledged to pay back bonds.

    2. If the local government is one which is required to include a coastal management element in its comprehensive plan pursuant to s. 163.3177(6)(g), the commission order may also specify that the local government is not eligible for funding pursuant to

    s. 161.091. The commission order may also specify that the fact that the coastal management element has been determined to be not in compliance shall be a consideration when the Department of Natural Resources considers permits under

    s. 161.053 and when the Board of Trustees of the Internal Improvement Trust Fund considers whether to sell, convey any interest in, or lease any sovereignty lands or submerged lands until the element is brought into compliance.

    
    

    Section 163.3184(11), Fla. Stat. Dade County's Standing to Intervene

84. Dade County is a unit of local government. It has jurisdiction over areas in and around the City of Islandia, including Biscayne Bay, that have been designated as areas warranting protection and special treatment. The

    preponderance of the record evidence establishes that these protected areas will be adversely affected if the residential development permitted by the City's comprehensive plan takes place. Accordingly, the County is an "affected person," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to participate in these compliance review proceedings pursuant to Section 163.3184(10), Florida Statutes.

    
    

    Tropical Audobon Society's Standing to Intervene

    
    

85. The Tropical Audobon Society contends that it conducts business within the City limits and therefore meets the definition of "affected person" found in Section 163.3184(1)(a), Florida Statutes. It concedes that it did not submit any objections during the City's review and adoption proceedings, but argues that it failed to do so only because the City neglected to properly notice these review and adoption proceedings. Under such circumstances, Tropical asserts, its failure to submit objections during the review and adoption proceedings should not be fatal to its petition to intervene.

    
    

86. Persons "operating a business within the boundaries of the local government whose plan is the subject of the review" are among the persons specifically mentioned in the statutory definition of "affected person." There is no provision in Chapter 163, Part II, Florida Statutes, however, explaining what constitutes a "business," as that term is used in Section 163.3184(1)(a), Florida Statutes. In the absence of such a statutory definition, it must be assumed that the Legislature intended that the term be given its plain and ordinary meaning. See State v. Buckner, 472 So.2d 1228, 1229 (Fla. 2nd DCA 1985).

    
    

87. The term "business" is commonly understood to mean activity engaged in on a regular basis for the purpose of pecuniary gain or receiving other compensation. See United States v. King, 532 F.2d 505, 510 (5th Cir. 1976),

    U.S. cert. denied 429 U.S. 960 (1976); Trade Commission v. Skaggs Drug Centers, Inc., 446 P.2d 958, 963 (Utah 1968). The preponderance of the evidence fails to establish that Tropical or its members regularly engage in such activity in the City of Islandia. While Tropical and its members participate in bird census surveys and conduct wildlife tours in the City, there has been no showing that Tropical or any of its members receives any compensation for engaging in these activities; nor is there any indication as to whether Tropical and its members engage in these activities with regularity. Tropical therefore has failed to demonstrate that it is "operating a business within the boundaries of the local government whose plan is the subject of the [instant] review." See Powell v. Daily, 712 P.2d 356, 359-360 (Wyoming 1986)(persons on hunting and fishing expeditions who guide their friends for purely recreational purposes are not engaged in a "business" for which a license is required; if they do so for compensation, however, they need to obtain a "business" license). Because it has not established that it operates a "business" in the City or that it otherwise qualifies as an "affected person," within the meaning of Section 163.3184, Florida Statutes, Tropical is not entitled to intervene in this cause. Accordingly, its petition requesting that it be granted party intervenor status in the instant case should be denied.

    
    

    Deficiencies Alleged and Proven

    
    

88. The Department of Community Affairs and Dade County allege that the City's comprehensive plan fails to meet the requirements of the following provisions of Sections 163.3177 and 163.3178, Florida Statutes, and Chapter 9J-

    5, Florida Administrative Code, which concern the data and analysis needed to support a local government's comprehensive plan:

    
    

    All elements of the comprehensive plan, whether mandatory or optional, shall be based upon data appropriate to the element involved.

    Section 163.3177(8), Fla. Stat.

    All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents shall be based upon relevant and appropriate data. Fla. Admin. Code Rule 9J-5.005(2)(a).

    The comprehensive plan shall be based on resident and seasonal population estimates and projections. . . . If the local government chooses to prepare its own estimates and projections, [it must be shown that] the particular methodology [used] is professionally accepted. Fla. Admin. Code Rule 9J-5.005(2)(e).

    The future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of the undeveloped land; the availability of public services. . . .

    Section 163.3177(6)(a), Fla. Stat.

    The [future land use] element shall be based upon . . . [a]n analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including [an

    analysis of its] natural resources. Fla. Admin. Code Rule 9J-5.006(2)(b).

    The [future land use] element shall be based upon . . . [a]n analysis of the proposed development . . . of flood prone areas. . . .

    Fla. Admin. Code rule 9J-5.006(2)(e).

    The [infrastructure or public facilities] element shall be based upon [an analysis of] the impact of the facilities upon adjacent natural resources [and] the problems [associated with] new facility siting. Fla. Admin. Code Rule 9J-5.011(1)(f).

    Each coastal management element . . . shall be based on studies, surveys and data and

    [c]ontain [:a] land use and inventory map of existing coastal uses, wildlife habitat, wetland and other vegetative communities ;

    [and a]n analysis of the environmental, socioeconomic, and fiscal impact of development . . . proposed in the future land use plan, with required infrastructure to support this development . . . , on the natural . . . resources of the coast.

    Section 163.3178(2)(a) and (b), Fla. Stat.

    [The principles outlined in the coastal management element relating to] hazard mitigation and protection of human life against effects of natural disaster, including population evacuation, [must] take into consideration the capability to safely evacuate the density of coastal population proposed in the future land use element in the event of an impending natural disaster. Section 163.3178(2)(d), Fla. Stat.

    The [coastal management] element should be based upon . . . analyses of the effect of the future land uses . . . on the natural resources in the coastal areas . . . [and] an assessment of the impact of the development . . . proposed in the future land use element and the impacts of facilities proposed in the traffic circulation and general sanitary sewer, solid waste, drainage, potable water, and

    natural groundwater aquifer recharge elements upon water quality. . . . . Fla. Admin. Code Rule 9J-5.012(2)(b) and (d).

    Maps shall be prepared of vegetative cover [and] wildlife habitat . . . [in conjunction with the preparation of the coastal management element of the comprehensive plan]. Fla. Admin. Code Rule 9J-5.012(2)(b).

    
    

    The preponderance of the evidence establishes that the City's adopted comprehensive plan is not consistent with these statutory and rule requirements, as alleged by the Department of Community Affairs and Dade County.

    
    

89. The Department and the County further allege that the City's adopted comprehensive plan does not meet the following additional requirements of Sections 163.3177 and 163.3178, Florida Statutes, and Chapter 9J-5, Florida Administrative Code:

    
    

    The [future land use] element shall contain one or more specific [emphasis supplied] objectives 22/ for each goal 23/ statement

    which . . . : 1. Coordinate future land uses with the appropriate topography, soil conditions and the availability of facilities and services; . . . 4. Ensure the protection of natural resources and historic resources; [and] 5. Coordinate coastal area population densities with the appropriate local or regional hurricane evacuation plan; . . . .

    Fla. Admin. Code Rule 9J-5.006(3)(b).

    The [future land use] element shall contain one or more policies 24/ for each objective which address implementation activities for the: 1.

    Regulation of . . . areas subject to seasonal and periodic flooding; 2. Provision for the compatibility of adjacent land uses; . . .

    [and] 6. Protection of environmentally

    sensitive land; . . . . Fla. Admin. Code Rule 9J-5.006(3)(c).

    The following natural resources shall be shown

    on the future land use map or map series: . . . [b]eaches . . .; . . . flood plains . . .; [w]etlands; . . . . Fla. Admin. Code

    Rule 9J-5. 006(4)(b).

    [The infrastructure or public facilities element shall be] correlated to principles and guidelines for future land use [and shall indicate] ways to provide for future . . . drainage . . . requirements for the area.

    Section 163.3177(6)(c), Fla. Stat.

    The [infrastructure or public facilities] element shall contain one or more specific [emphasis supplied] objectives for each goal statement which . . .: . . . 2. Address coordinating the . . . increase in the capacity of facilities to meet future

    needs; . . . 4. Address conserving potable water resources; [and] 5. Address protecting . . . natural drainage features. Fla. Admin. Code Rule 9J-5.011(2)(b).

    The [infrastructure or public facilities] element shall contain one or more policies for each objective which address implementation activities for: . . .

    Establishing level of service standards . . . for solid waste facilities. Fla. Admin.

    Code Rule 9J-5.011(2)(c)2.b.

    The coastal management element shall set forth the policies that shall guide the local government's decisions and program implementation with respect to the following objectives: 1. Maintenance, restoration, and enhancement of the overall quality of the coastal zone environment . . .; 3. The orderly and balanced utilization and preservation, consistent with sound conservation principles, of all living and nonliving coastal zone resources; 4.

    Avoidance of irreversible and irretrievable loss of coastal zone resources; 5.

    Ecological planning principles and assumptions to be used in the determination of suitability and extent of permitted development; 6. Proposed management and regulatory techniques; . . . [and] 8.

    Protection of human life against the effects of natural disasters. Section 163.3177(6)(g), Fla. Stat.

    [L]ocal government comprehensive [plans] shall restrict development activities where such activities would damage or destroy coastal resources and . . . such plans [shall] protect human life Section

    163.3178(1), Fla. Stat.

    Each coastal management element . . . shall . . . contain: (b) . . . the plans and principles to be used to control

    development . . . to eliminate or mitigate the adverse impacts on coastal wetlands; living marine resources; barrier islands, including beach and dune systems; unique wildlife habitat; historical and archaeological sites; and other fragile coastal resources; [and] (d) A component which outlines principles for hazard mitigation and protection of human life against the effects of natural

    disaster . . . . Section 163.3178(2)(b) and (d), Fla. Stat.

    The [coastal management] element shall contain one or more specific [emphasis supplied] objectives for each goal statement which

    . . . : 1. Protect conserve, or enhance remaining coastal wetlands [and] living marine resources . . .; 2. Maintain or improve estuarine environmental quality;

    . . . 6. Direct population concentrations away from known or predicted coastal high- hazard areas; 25/ 7. Maintain or reduce hurricane evacuation times; . . . [and] 11. Establish level of service standards, areas of service and phasing of infrastructure in the coastal area. Fla. Admin. Code Rule

    9J-5.012 (3)(b).

    
    

    The [coastal management] element shall contain one or more policies for each objective and shall identify regulatory or management techniques for: 1. Limiting the specific impacts and cumulative impacts of development

    . . . upon wetlands, water quality [and] living marine resources. . .; 2.

    Restoration or enhancement of disturbed or degraded natural resources including . . .

    estuaries, wetlands, and drainage systems; and programs to mitigate future disruptions and degradations; 3. General hazard mitigation including regulation of building practices, floodplains, beach and dune alteration, stormwater management, sanitary sewer and septic tanks, and land use to reduce the exposure of human life and public and private property to natural hazards;

    and incorporating the recommendations of the hazard mitigation annex of the local peacetime emergency plan and applicable existing interagency hazard mitigation reports; 4. Hurricane evacuation including methods to relieve deficiencies identified in the hurricane evacuation analysis, and procedures for integration into the regional

    or local evacuation plan; . . . 12. Ensuring that required infrastructure is available to serve development . . . 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 phased to coincide with the demands generated by development; 13. Protecting estuaries which are within the jurisdiction of more than one local government 26/ . . .; 14.

    Demonstrating how the local government will coordinate with existing resource protection plans . . . . Fla. Admin. Code Rule

    9J-5.012(3)(c).

    
    

    The preponderance of the evidence establishes that the City's adopted comprehensive plan is also not consistent with the requirements of these additional statutory and rule provisions, as alleged by the Department and the County. The plan treats the issues raised in these provisions, if at all, in only a vague and superficial fashion that provides little or no direction. The plan's lack of clarity and specificity regarding these significant matters renders it an ineffective device to guide and control the City's growth and development.

    
    

90. The Department and the County also contend that the City's adopted plan is internally inconsistent in violation of Section 163.3177(2), Florida Statutes, which provides in pertinent part that "[t]he several elements of the comprehensive plan shall be consistent," and Florida Administrative Code Rule 9J-5.005(5)(a), which similarly requires that "[t]he required elements and any optional elements shall be consistent with each other." To sustain an allegation that a local government's adopted comprehensive plan does not meet the requirements of these provisions, the party advancing such an allegation must demonstrate that the matter is not even fairly debatable. Section 163.3184(10)(a), Fla. Stat. Given the internal inconsistencies in the City's adopted plan previously noted in Finding of Fact 28 and footnotes 3, 5, 6, 8, 9 and 16 of this Recommended Order, such a showing has been made in the instant case. 27/

    
    

91. The Department and the City additionally allege that the City's adopted comprehensive plan is not consistent with the requirements of the following provisions of the South Florida Regional Planning Council's Comprehensive Plan (Regional Plan) and the State Comprehensive Plan:

    
    

    By 1995 the amount of solid waste placed in landfills will be reduced by 30 percent over the 1986 volume. Goal 51.1, Regional Plan.

    New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided. Goal, 57.1, Regional Plan.

    Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of development on the surrounding environment. Goal, 58.1, Regional Plan.

    Require local governments, in cooperation with

    regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents. Section 187.201(7)(b)24, Fla. Stat.

    Require local governments, in cooperation with regional and state agencies, to adopt plans and policies to protect public and private property and human lives from the effects of natural disasters. Section 187.201(7)(b)25, Fla. Stat.

    Protect coastal resources [and] marine resources . . . from the adverse effects of development. Section 187. 201(9)(b)4, Fla. Stat.

    Encourage land and water uses which are compatible with the protection of sensitive coastal resources. Section 187.201(9)(b)6, Fla. Stat.

    
    

    The preponderance of the evidence establishes that the City's adopted comprehensive plan is not compatible with, nor does it further, these provisions of the Regional Plan and the State Comprehensive Plan. The City's plan is therefore not consistent with the requirements of these provisions.

    
    

92. The Department and the County also advance the following allegation concerning the City's adopted comprehensive plan:

    
    

    Islandia's failure to provide the public notices required by s. 163.3164(17) 28/ and s. 163.3184(15) 29/ is a legal basis for finding the plan to be not "in compliance" pursuant to

    s. 163.3184(1)(b), F.S. That subsection states that "in compliance" means, among other things, "consistent with the requirements of . . . rule 9J-5, F.A.C. . . ." Rule 9J-5.005(8) states, at subsection (b), that proposed plans shall be considered at a public hearing with due public notice. Subsection (d) of that rule states that comprehensive plans shall be transmitted after formal action of the governing body in accordance with the provisions of Section 163.3184 and 163.3187, F.S. Therefore, it is found that the Act explicitly requires, as a matter of compliance, that the proper public notice preceded the preparation and adoption

    of a comprehensive plan.

    
    

    In support of their position on this matter, the Department and the County rely on the amended final order issued by the Administration Commission in Austin v. Department of Community Affairs, Case No.89-31, in which it was held that "public participation may be raised within a compliance review proceeding pursuant to section 163.3184, F.S." To be consistent with its holding in Austin

    v. Department of Community Affairs, the Administration Commission should hold in the instant case that it has the statutory authority to determine in these compliance review proceedings whether the City complied with the notice requirements referenced in Florida Administrative Code Rule 9J-5.005(8). Moreover, it should conclude that the preponderance of the evidence establishes

    that the City failed to comply with these requirements inasmuch as the City did not publish in a newspaper of general circulation in the area prior notice of the hearings on the transmittal of its proposed plan and the adoption of the final version of the plan, nor did it otherwise advertise in advance these hearings to the general public. 30/

    
    

93. The deficiencies noted in the preceding five paragraphs, when viewed collectively, are more than mere technical imperfections of form. As the City candidly concedes, they are of sufficient substance and significance to warrant a finding that the City's plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. 31/ Accordingly, the Administration Commission should enter a final order which makes such a finding, directs that the City take remedial action to cure these noted deficiencies and imposes appropriate sanctions pursuant to Section 163.3184(11), Florida Statutes.

    
    

    Other Alleged Deficiencies

    
    

94. The Department and the City contend that the City's adopted comprehensive plan is deficient because it does not address that portion of the City in which Biscayne National Park is located. The City's failure to make no more than passing reference to this area of the City in its plan, however, is not a basis upon which to find the plan not "in compliance" inasmuch as it is the federal government, rather than the City, that has regulatory authority over the park. 16 USC paragraph 410gg-2 and 4.

    
    

95. The Department and the County also contend that the "plan does not encourage the most appropriate use of land, water and resources as required by Section 163.3161(3), F.S." Contrary to the suggestion made in this assertion, Section 163.3161(3), Florida Statutes, does not itself impose any requirements upon local governments. Rather, it simply is a statement of the Legislature's intent in imposing those requirements found elsewhere in Chapter 163, Part II, Florida Statutes. Therefore, while reference may be made to Section 163.3161(3), Florida Statutes, in construing the statutory provisions which contain these requirements, Section 163.3161(3), Florida Statutes, is not a statutory provision the violation of which causes a local government's adopted comprehensive plan to be not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. 32/

    
    

96. Section 163.3177(6)(d), Florida Statutes, provides that "[t]he land uses identified on [the future land use map] shall be consistent with applicable state law and rules." The allegation is made by the Department and the County that the City's future land use map does not meet the requirements of Section 163.3177(6)(d), Florida Statutes, because it is in derogation of the provisions of Section 381.272, Florida Statutes, which regulate the construction and installation of onsite sewage disposal systems, and Section 403.918, Florida Statutes, which set forth the criteria the Department of Environmental Regulation must consider in determining whether to grant or deny an application for a permit to dredge or fill in, on or over certain waters and wetlands in the State of Florida. The allegation, however, is not supported by a preponderance of the evidence. There has been no showing that the "residential" and "recreational" land uses identified on the City's future land use map are absolutely prohibited by the provisions of either Section 381.272, Florida Statutes, 33/ or Section 403.918, Florida Statutes. 34/ Absent such a showing that, under no circumstances, will these land uses be permitted under Section 381.272, Florida Statutes, or Section 403.918, Florida Statutes, the proof is insufficient to establish that there has been a violation of the requirement of

Section 163.3177(6)(b), Florida Statutes, that the "land uses identified on [the future land use map] shall be consistent with applicable state law and rules."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED the Administration Commission issue a final order which: (1) dismisses the Tropical Audobon Society's petition to intervene; (2) finds the City of Islandia's adopted comprehensive plan not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the foregoing Conclusions of Law; (3) directs the City to remedy these specific deficiencies to bring the plan "in compliance;" and (4) imposes appropriate sanctions authorized by Section 163.3184(11), Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990.

ENDNOTES

1/ During the course of the hearing on the petition, counsel for Tropical described as follows the narrow purpose of its proposed intervention:

[W]e're here and seeking to intervene, frankly in a very limited sense because what we're objecting to . . . on the merits is the nature of the public notice and hearing . . . the procedure that was followed to adopt this plan and transmit it to the Department of Community Affairs.

2/ A category one hurricane, which is the least severe hurricane, produces a storm surge of ten to fifteen feet. As noted previously, the uplands in the City, at their highest elevation, are only four feet above sea level.

3/ As is acknowledged in the data and analysis section of the plan document, septic tanks are not suitable for use in the City because of the City's soil conditions, topography and fragile environment. Nonetheless, this policy

authorizes septic tank use. To the extent that it does so, it is inconsistent with Policy 1.1.2 of the infrastructure element and Policy 2.6.1 of the coastal management element.

4/ This portion of the policy dealing with solid waste disposal actually prescribes a means, rather than a level, of service. In the absence of a level of service for solid waste disposal, it will be impossible to determine what solid waste facilities will be needed to be provided concurrent with the impacts of the City's development to adequately support such development.

5/ To the extent that this policy provides that sewage disposal may be accomplished only through the use of package treatment plants, it is inconsistent with Policy 1.1.3 of the future land use element, Policy 1.2.1 of the infrastructure element and Policy 1.2.1 of the capital improvements element. These other three policies permit the use of septic tanks.

6/ To the extent that this policy implies that septic tanks are an acceptable means of disposing of sewage, it is inconsistent with Policy 1.1.2 of the infrastructure element and Policy 2.6.1 of the coastal management element which suggest the contrary.

7/ The explanation referred to in this policy is as follows:

Existing and proposed development here is recreational rather than permanent or year round housing. But as long as this land remains in private ownership, populations cannot reasonably or legally be "directed" elsewhere. The alternative is acquisition by the National Park Service or other public agency.

8/ To the extent that this policy suggests that the entire 842 acres of privately held land in the City is subject to residential development under the plan, it is inconsistent with the plan's future land use map which reflects that such development may take place only on the five Ragged Keys.

9/ To the extent that this policy provides that sewage disposal may be accomplished only through the use of package treatment plants, it is inconsistent with Policy 1.1.3 of the future land use plan, Policy 1.2.1 of the infrastructure element and Policy 1.2.1 of the capital improvements element which also permit the use of septic tanks.

10/ Significantly, there is no indication as to how large or small a percentage of vegetation and habitat will have to be retained. This is just one example of the imprecision which characterizes the City's adopted plan, particularly those portions of the plan addressing the protection of coastal and natural resources. Such imprecision renders the plan ineffective as a tool to guide and control the City's growth and development.

11/ Policy 1.1.3 of the future land use element provides for a open space level of service (including both public and private lands) of 175 acres per permanent resident.

12/ The City of Islandia is one of the few municipalities in Dade County that did not approach the County in an attempt to coordinate its plan with that of the County.

13/ While the City's comprehensive plan acknowledges that the Biscayne Bay Management Plan may serve as a useful guide in regulating the City's development, it does not require that the guidelines set forth in the Biscayne Bay Management Plan be followed. Indeed, the development permitted by the City's plan would run contrary to these guidelines.

14/ Dade County is responsible for coordinating hurricane evacuations in the incorporated and unincorporated areas of the County.

15/ Notwithstanding the importance of coordinating with the County on the issue of emergency evacuation, no City representative contacted the County's Office of Emergency Management prior to the adoption of the City's plan.

16/ To the extent that this policy permits the use of septic tanks, it is inconsistent with Policy 1.1.2 of the infrastructure element and Policy 2.6.1 of the coastal management element of the City's adopted plan.

17/ It appears from the evidence adduced at hearing that the adverse impact on the area's natural resources, particularly the mangroves on the islands and the water and seagrass and hard-bottom communities surrounding them, would be substantial.

18/ Regarding the potable water needs of the City in the year 2001, the Data and Analysis section of the plan contains the following projection:

Assuming a maximum of 351 dwelling units by 2001; the average number of persons per household (PPH) is 2.05; seasonal and occasional residents are the norm (effectively reducing the value of the PPH), and water usage is 100 gallons per capita daily given

stringent conservation requirements (xeriscape, low flow showers, etc.) maximum water usage would reach an estimated 72,000 gallons per

day by that date.

This projection is flawed because it is based upon the unreasonable assumption that water usage will not exceed "100 gallons per capita daily." In any event, whether or not 72,000 gallons per day is an unrealistically low projection of the City's potable water needs by the year 2001, there is an absence of any indication that these needs will be able to be met.

19/ The Data and Analysis section of the plan document does discuss the possibility of locating a potable water well on Ragged Key Five which would tap the Floridian Aquifer and use reverse osmosis, a process that removes salt from brackish water. This well, however, if constructed, would be able to serve only the future residents of Ragged Key Five because of the infeasibility of running water lines in the water surrounding the island. The Data and Analysis section of the plan document also discusses in very limited detail the possibility of using rainwater runoff from roofs collected and stored in cisterns as drinking water. Making such use of this runoff, however, is not a viable option primarily because rainwater captured in this manner is apt to be polluted with animal droppings and other pollutants and therefore unsafe to drink.

20/ For example, with respect to sanitary sewage, no consideration was given to the high cost of, and significant engineering problems associated with, the

provision of deep-well injection, which would be the only environmentally sound means of disposing of effluent from package plants operating in the City.

21/ The Dade County Manager is vested with the authority to order the evacuation of any area in the County, including the City of Islandia. In determining whether an evacuation should be ordered, he relies upon information provided by the National Hurricane Center. Hurricane warnings are issued by the National Hurricane Center, at most, 24 hours in advance of the hurricane making landfall. Because of the difficulty in predicting the course a hurricane will take, there is frequently less advance warning. Even if they are given a full

24 hours advance warning before landfall, however, it is questionable that residents of the City of Islandia, in the numbers envisioned by the City's adopted comprehensive plan, will have a sufficient amount of time to safely flee to the mainland with their belongings, dock their boats and find shelter, particularly when one considers that gale force winds and high tides associated with hurricanes typically precede landfall by several hours. Such being the case, it must be said that the City's plan puts human lives and property at risk.

22/ The term "objective," as used in Chapter 9J-5, Florida Administrative Code, "means a specific measurable, intermediate end that is achievable and marks progress toward a goal." Fla. Admin. Code Rule 9J-5.003(61).

23/ The term "goal," as used in Chapter 9J-5, Florida Administrative Code, "means the long-term end toward which programs or activities are ultimately directed." Fla. Admin. Code Rule 9J-5.003(36).

24/ The term "policy," as used in Chapter 9J-5, Florida Administrative Code, "means the way in which programs and activities are conducted to achieve an identified goal." Fla. Admin. Code Rule 9J-5.003(68).

25/ The term "coastal high-hazard areas," as used in Chapter 9J-5, Florida Administrative Code, "includes areas which have historically experienced destruction or severe damage, or are scientifically predicted to experience destruction or severe damage, from storm surge, waves, erosion, or other manifestations of rapidly moving or storm driven water." All areas within the City of Islandia fall within the scope of this definition.

26/ Biscayne Bay is one such estuary.

27/ The Hearing Officer, however, does not agree with the Department's and the County's contention that, because the plan's future land use map designates only the five Ragged Keys for "residential" development, whereas the "narrative parts of the plan . . . explicitly confirm that it is the [City's] intent to designate all of the privately held acreage [not just the five Ragged Keys] for residential development," the plan does not meet the requirements of Section 163.3177(2), Florida Statutes, and Florida Administrative Code Rule 9J- 5.005(5)(a). The "narrative parts of the plan" to which the Department and the County refer, unlike the future land use map, were not adopted by the City Council. Accordingly, the fact that they contain statements regarding planned "residential" development that conflict with the land use designations on the future land use map does not render the City's adopted plan internally inconsistent in contravention of the requirements of Section 163.3177(2) and Florida Administrative Code Rule 9J-5.005(5)(a).

28/ Section 163.3164(17), Florida Statutes, provides as follows:

"Public notice" or "due public notice" as used in connection with the phrase "public hearing" or "hearing to be held after due public notice" means publication of notice of the time, place, and purpose of such hearing at least twice in a newspaper of general circulation in the area, with the first publication not less than 14 days prior to the date of the hearing and the

second to be at least 5 days prior to the hearing.

29/ Section 163.3184(15)(b), Florida Statutes, provides as follows:

The local governing body shall hold at least two advertised public hearings on the proposed comprehensive plan or plan amendment as follows:

1. The first public hearing shall be held at the transmittal stage pursuant to subsection (3). It shall be held on a weekday approximately 7 days after the day that the first advertisement is published. The intention to hold and advertise a second public hearing shall be announced at the first public hearing.

2. The second public hearing shall be held at the adoption stage pursuant to subsection (7). It shall be held on a weekday approximately 5 days after the day that the second advertisement is published.

Except as provided in paragraph (c), the advertisement shall state the date, time, place of the meeting, the subject of the meeting, and the place or places within the boundaries of local governmental entity where the proposed comprehensive plan or plan amendment may be inspected by the public.

The advertisement shall also advise that interested parties may appear at the meeting and be heard regarding the transmittal or adoption of the comprehensive plan or plan amendment.

30/ To remedy its failure to comply with these notice requirements, a local government must go through the transmittal and adoption process anew and, in so doing, give required notice of all transmittal and adoption hearings.

31/ In view of the City's concession that its plan is not "in compliance," the Hearing Officer in this Recommended Order has not discussed and analyzed each of the plan's deficiencies in detail.

32/ The statutory provisions that contain the requirements which must be met in order for a local government's adopted plan to be "in compliance" are specifically enumerated in Section 163.3184(1)(b), Florida Statutes, a listing

that the Hearing Officer assumes was intended to be exhaustive. See PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla. 1988)("The express mention of one thing implies the exclusion of another").

33/ While Section 381.272, Florida Statutes, imposes certain restrictions upon the construction and installation of onsite sewage disposal systems, it also authorizes the Department of Health and Rehabilitative Services, under certain conditions, to "grant variances in hardship cases which may be less restrictive than the provisions specified in this section."

34/ "While the obvious statutory purpose [of the Warren S. Henderson Wetlands Protection Act, Sections 403.91-403.929, Florida Statutes] is to regulate dredging and filling activity to prevent or limit harm to the natural environment in the respects described in the statute, there is no manifest statutory intent to prohibit the owner from conducting dredging and filling activity altogether." 1800 Atlantic Developers v. Department of Environmental Regulation, 14 FLW 2604, 2606-07 (Fla. 1st DCA November 9, 1989).

35/ It is also accessible by seaplane and helicopter.

36/ There is no requirement that the data and analysis underlying the future land use element of a local government's adopted plan be adopted as part of the plan. Fla. Admin. Code Rule 9J-5.005(1)(c). Accordingly, it is of no significance that the comprehensive plan adopted by the local government "does not demonstrate how the nature of the undeveloped land . . . is amenable to th[e] type and intensity of use" permitted by the plan's future land use element.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1508GM

Rulings on the Department's and the County's Proposed Findings of Fact

The following findings of fact proposed by the Department and the County have been rejected because they are not supported by persuasive competent substantial evidence:

12, fourth sentence, to the extent it implies that the plan document states that the destruction of mangroves should be prohibited under all circumstances; 27, first sentence; 28, third sentence; 29, first sentence, and 30, first and second sentences, to the extent that they suggest that the referenced "provisions" are part of the City's adopted comprehensive plan; 42, to the extent that it states that the City is accessible only by boat; 35/ and 51, fourth sentence, to the extent that it asserts that the referenced policy is found in the coastal management, rather than the conservation, element of the City's adopted plan.

The Hearing Officer has declined to include the following proposed findings in the Findings of Fact portion of this Recommended Order because they constitute legal argument and conclusions of law rather than findings of fact:

1; 23, second sentence; 27, second sentence;

30, third sentence; 32; 33; 34, second and

third sentences; 36, first sentence; 37,

first sentence; 42, second sentence; 46-50; 51, third sentence; 52, second and third sentences; 53-54; 55, first sentence; 56,

second sentence; 57, first sentence; 58,

first sentence; 62; 64; 65, second sentence;

70; 71, first sentence; 72, first sentence;

73-74; 81; 82, second sentence; 89, first

sentence; 91, first sentence; 105, second

sentence; 107; 108, first and third

sentences; 109, second sentence; 110-111;

112, first sentence; 113-114; 116-118; 120,

third and fourth sentences; 122; 124; 125;

126, first sentence; 127, first sentence;

128-133; 136; and 137.

The following findings of fact proposed by the Department and the County have been rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer and set forth in this Recommended Order:

36, second 36/ and fourth sentences; and 123, first and second sentences.

The proposed findings of fact not specifically referenced above have been incorporated in substance, although not necessarily repeated verbatim, in the Findings of Fact portion of this Recommended Order.

COPIES FURNISHED:

Richard J. Grosso, Esquire Senior Attorney

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Ana Gomez-Mallada, Esquire Islandia City Attorney 6481 S.W. 42nd Street Miami, Florida 33155

Craig H. Coller, Esquire Assistant County Attorney Metro-Dade Center

Suite 2810

111 N.W. 1st Street Miami, Florida 33128-1993

Dennis J. Olle, Esquire 1801 S.W. 3rd Avenue 8th Floor

Miami, Florida 33129

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA BEFORE THE

ADMINISTRATION COMMISSION

DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioner,

and METROPOLITAN DADE COUNTY,

Intervenor,

vs. CASE NO. ACC90-001

DOAH NO. 89-1508GM

CITY OF ISLANDIA,

Respondent.

/

FINAL ORDER

This cause came before the Governor and Cabinet, sitting as the Administration Commission (the "Commission") on June 12, 1990, in Tallahassee, Florida, pursuant to sections 163.3184(10) and 163.3184(11), Florida Statutes (F.S.), for consideration of a Recommended Order from the Division of Administrative Hearings, concerning the City of Islandia's local government comprehensive plan. Based on review of the Recommended Order, a copy of which is attached as Exhibit A, the Commission issues its final order as follows.

Background

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

The City adopted its comprehensive plan on January 13, 1989, and transmitted it to the DCA. The DCA issued a Notice of Intent to find the comprehensive plan not in compliance with the Act and Rule 9J-5 on March 23, 1989, and filed a petition for a formal administrative hearing with the State of Florida Division of Administrative Hearings (DOAH). Metropolitan Dade County

was granted status to intervene as a full party petitioner by hearing officer's order issued September 19, 1989, with the caveat that the County would not be permitted to inject any new issues in the review proceeding due to time limitations. On October 2, 1989, the hearing officer issued an order granting a continuance of the formal hearing and granting the County's request to introduce new issues. The DOAH hearing was held in Miami, Florida, on November 20-21, 1989, before Hearing Officer Stuart M. Lerner. Pursuant to section 163.3184(10)(b), F.S., the Recommended Order was submitted to the Commission on March 28, 1990 for consideration of final agency action.

Findings of Fact

1. The Commission adopts the hearing officer's Findings of Fact Numbers 1 through 68, set out in pages 7 to 45 of the Recommended Order.

   
   

   Conclusions of Law

   
   

2. The Commission adopts Conclusions of Law Numbers 1 through 25, at pages

   45 through 64 of the hearing officer's Recommended Order.

   
   

3. The Commission does not adopt Conclusion of Law Number 26, at page 64 of the hearing officer's Recommended Order. The Commission concludes that a local government comprehensive plan must compile and analyze data on all land areas within its jurisdiction, and to address such areas within appropriate elements of the plan, including future land use, capital improvements, and intergovernmental coordination. The City's acknowledged cursory treatment of federal lands comprising 41,366 out of a total 42,208 acres (over 98%) of submerged and nonsubmerged land in its jurisdiction makes it impossible to develop plan goals and policies that are clearly based on relevant and appropriate data. See section 163.3177(10)(e), F.S.; Chapter 9J-5.005(2)(a), F.A.C.

   
   

4. The Commission adopts Conclusions of Law 27 and 28, at pages 64 through

   66 of the hearing officer's Recommended Order. Determination of Compliance and Order

   
   

5. It is hereby concluded, by the Administration Commission, that the City of Islandia's Comprehensive Plan ("Plan"), as adopted on January 13, 1989, is not in compliance with Chapter 163, Part II, F.S., and with Chapter 9J-5, F.A.C.

   
   

6. The Administration Commission requested that State agencies provide the Commission with State revenues and other funds available to the City pursuant to section 163.3184(11), F.S. Response letters from the Departments of Revenue, Community Affairs, Environmental Regulation, Transportation, and Natural Resources are attached as Exhibit B.

   
   

7. The Department of Revenue (DOR) estimates for State shared revenue programs described in section 163.3184(11), F.S., for the City of Islandia in Fiscal Year 1989-90 include: State revenue sharing (pursuant to section 210.20, F.S.) estimated at $188; 2 cent cigarette tax (pursuant to section 210.20, F.S.) estimated at $19; and half-bent sales tax (pursuant to section 218.61, F.S.) estimated at $530. The DOR estimates for State shared revenue programs described in section 163.3184(11), F.S., for the City of Islandia in Fiscal Year 1990-91 include: State revenue sharing (pursuant to section 210.20, F.S.) estimated at $190; 2 cent cigarette tax (pursuant to section 210.20, F.S'.) estimated at $19; and half-cent sales tax (pursuant to section 218.61, F.S.) estimated at $572. See Exhibit B. By letter dated June 6, 1990, the DOR

   notified the Commission that the DOR is currently withholding funds from the City of Islandia for non-compliance with section 200.065, F.S. The letter is attached as Exhibit C.

   
   

8. The Commission notes that the DCA issued a Notice of Intent to find the City's comprehensive plan not in compliance on March 23, 1989, over one year prior to the date of this order. The Commission further notes that the City encompasses 42,208 acres of submerged and non-submerged land, divided as follows: 41,366 acres are owned by the federal government and are part of Biscayne National Park; 842 acres are privately held, of which 839 acres are submerged bottom lands of Biscayne Bay and the Atlantic Ocean. Because of the unique nature of the lands within the boundaries of the City, the Commission finds that sanctions should be imposed immediately in this case. Pursuant to the provisions of sections 163.3184(10) and 163.3184(11), F.S., the Commission orders that the City of Islandia shall be ineligible to receive distributions under each of the revenue sharing programs enumerated in section 163.3184(11)(a)3., F.S., that are applicable to the City in the remainder of Fiscal Year 1989-90 and in Fiscal Year 1990-91, namely:

   
   

   1. all distributions from the Municipal Financial Assistance Trust Fund pursuant to section 210.20, F.S.;

   2. all distributions from the Local Government Half-Cent Sales Tax Clearing Trust Fund pursuant to section 218.61,

      F.S; and

      
      

   3. all distributions from the Municipal Revenue Sharing Trust Fund pursuant to section 210.20, F.S.

   
   

   When, the remedial actions required in paragraph 10 of this order are completed and the Commission ends its jurisdiction in this case pursuant to paragraph 16 of this order, the Commission shall consider whether the City's eligibility for distributions should be restored. The Commission directs the DOR to immediately begin withholding all funds available for distribution to the City of Islandia under these programs in Fiscal Year 1989-90 and for Fiscal Year 1990-91 and to place such funds in reserve.

   
   

9. Pursuant to Chapter 28-39.005(I), F.A.C., the Commission requested the DCA to provide a recommendation as to the remedial actions which would bring the City's comprehensive' plan into compliance, as well as the type and extent of funds which should be withheld or other sanctions, as specified in section 163.3184(11), F.S. The DCA recommendations to the Commission are attached as Exhibit D to this order.

   
   

10. Having determined that the City of Islandia'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 be undertaken by the City in order to bring. the plan, as adopted and submitted to the DCA, into compliance.

    
    

    1. The comprehensive plan shall be amended to be based on resident and seasonal population estimates and projections in accordance with the requirements of Chapter 9J-5.005(2)(e), F.A.C., and section 163.3177(10)(e), F.S.

    2. The comprehensive plan future land use element

       shall be amended to be based upon surveys, studies and data required to accommodate anticipated growth, the projected population, the character of the undeveloped land, and the availability of public services and facilities. The future

       land use element and future land use map shall establish densities and intensities of land use that are supported by the data and analysis for the comprehensive plan.

       Residential densities are not appropriate for submerged areas, except as may be required under principles established by federal and State law. The future land use map or map series shall be amended to depict beaches, wetlands, floodplains, and environmentally sensitive lands.

       
       

    3. The comprehensive plan coastal management element shall be amended to take into consideration the capability to safely evacuate the density of coastal population proposed in the amended future land use element.

       
       

    4. The comprehensive plan infrastructure and capital improvements elements shall be amended to establish a level of service standard for solid waste facilities.

       
       

    5. The comprehensive plan future land use and coastal management elements shall be amended to include provisions to restrict development activities where such activities would damage or destroy coastal resources.

       
       

    6. The comprehensive plan coastal management element shall be amended to include provisions to eliminate or mitigate the adverse impacts of development on coastal wetlands, living marine resources, barrier islands, unique wildlife habitat, historical and archeological sites, and other fragile coastal resources.

       
       

    7. In preparing and adopting plan amendments that conform to the remedial actions specified in this order, the City shall ensure that the public participation requirements of section 163.3181, F.S., are followed to the fullest extent possible, and the plan be adopted and transmitted only after duly noticed public hearings are conducted in accordance with section 163.3184(15), F.S.

       
       

11. A plan amendment or amendments prepared pursuant to section 163.3187, F.S., and accomplishing the remedial actions specified in this order shall be prepared by the City and transmitted to the DCA no later than August 15, 1990. The DCA shall, by August 30, 1990, certify to the Commission whether the City's plan amendment(s) has been received.

    
    

12. If the plan amendments specified in paragraph 11 of this order are received by the DCA by August 15, 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 March 10, 1991. In the event. the plan amendment(s) has not been received by the DCA by August 15, 1990, the DCA shall notify the Commission by August 30, 1990 and shall forward with the notification a recommendation to the Commission regarding the City's conformance with the actions specified in this order. The Commission shall consider the DCA's recommendation in the Commission's determination of the City's conformance with the actions specified in this order.

13. 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.

    
    

14. 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 thee provisions of this order.

    
    

15. Copies of this order shall be forwarded to the Executive Director of the Department of Natural Resources and to the Executive Director of the Department of Revenue for enforcement of the sanctions specified herein. The Executive Director of the Department of Natural Resources and the Executive Director of the Department of Revenue shall acknowledge receipt of this order, and shall certify to the Commission that the actions specified in this order have been implemented.

    
    

16. The Commission shall retain jurisdiction for purposes of enforcing the provisions in this order. When the Commission determines whether the City has complied with the actions specified in this `order, the Commission will conclude its jurisdiction over this action and consider whether the City's eligibility for the distributions specified in subparagraphs 8(a), 8(b), and 8(c) of this order should be restored.

    
    

17. Based on the recommendation of the DOAH hearing officer in this case, the Commission hereby dismisses the Tropical Audubon Society's petition to intervene.

    
    

18. 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.

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

PATRICIA A. WOODWORTH

Secretary to the Administration Commission

cc: Members of the Commission Counsel of Record

Executive Director, Department of Revenue

Executive Director, Department of Natural Resources

Docket for Case No: 89-001508GM

Orders for Case No: 89-001508GM