STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY )
AFFAIRS, )
)
Petitioner, )
and )
) 1000 FRIENDS OF FLORIDA, ) EUGENE BOYD, COMMITTEE OF THE ) ISLANDS, INC., JAMES HAYES, ) RESPONSIBLE GROWTH MANAGEMENT ) COALITION, DONNA BUHL, CITY ) OF FORT MYERS, and THE ) SOUTHWEST FLORIDA REGIONAL ) PLANNING COUNCIL, )
)
Intervenors, )
)
vs. ) CASE NO. 89-1843GM
)
LEE COUNTY, )
)
Respondent, )
and )
) MARINER GROUP, INC., MARINER ) PROPERTIES, INC., SOUTH SEAS ) RESORT LIMITED PARTNERSHIP, ) d/b/a SOUTH SEAS PLANTATION, ) ECONOMIC DEVELOPMENT ) COALITION OF LEE COUNTY, ) INC., CITY OF CAPE CORAL, and )
RONALD WISS, as trustee, )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing as to the unabated portion of the above- styled case was held on October 9 and 10, 1989, in Ft. Myers, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
Although appearances were entered by all of the parties at the commencement of the hearing, only four parties participated in the evidentiary hearing that followed the settlement of a majority of the issues. The four parties were represented as follows:
For the Department of Community Affairs: David J. Russ, Senior Attorney Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399
For the City of Fort Myers: Andrew C. Stansell Siemon, Larsen & Purdy
Mizner Administration Building
2 East Camino Real Boca Raton, FL 33432
For Lee County:
Michael J. Ciccarone Assistant County Attorney
P.O. Box 398
Ft. Myers, FL 33432
For the City of Cape Coral: William M. Powell
City Attorney
P.O. Box 150027
Cape Coral, FL 33915-0027
STATEMENT OF THE ISSUES
The issue is whether the intergovernmental coordination element of the Lee County comprehensive plan is in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
PRELIMINARY STATEMENT
The Department of Community Affairs commenced the above-styled proceeding by filing on April 4, 1989, a Petition of the Department of Community Affairs. The petition, which incorporates a 24-page Statement of Intent to Find Comprehensive Plan Not in Compliance, does not mention the intergovernmental coordination element.
Two petitions to intervene are pertinent to the unabated portion of the case. The City of Fort Myers filed its Petition for Leave to Intervene on July 12, 1989. Paragraph 19 of the petition alleges:
the [Lee County comprehensive plan] is not in compliance with the requirements of [Chapter 163, Part II, Florida Statutes] in that the Lee Plan fails to provide a strong and effective intergovernmental coordination element showing relationships and stating principles and guidelines to be used in the
accomplishment of coordination of the adopted comprehensive plan with the comprehensive plans of adjacent municipalities.
On September 25, 1989, the City of Cape Coral filed a Petition to Intervene that generally alleges that the Lee County comprehensive plan was in compliance as to the intergovernmental coordination issues.
The only prehearing orders not reduced to writing were made during a telephone conference on October 6, 1989. At that time, the undersigned denied The Motion for Order for Consolidation of Issues filed by the City of Cape Coral on September 29, 1989; The Motion in Limine filed by the City of Fort Myers on October 2, 1989; and the Motion to Dismiss Cape Coral's Petition to Intervene filed by the Department of Community Affairs on October 2, 1989.
At the commencement of the hearing, Intervenors Ronald Wiss, as trustee, and The Southwest Florida Regional Planning Council amended previously filed petitions to intervene, as earlier petitions had been denied without prejudice. Both amended petitions were granted.
The parties announced that they were near settlement on all issues except for the challenge of the City of Fort Myers to the intergovernmental coordination element. The parties orally requested a continuance to 4:00 p.m., which was granted. When the hearing reconvened at 4:00 p.m., the parties announced that they had reached a settlement, which was to be presented to the Lee County Commission at 7:30 p.m. for approval. The parties therefore orally requested a continuance until the following morning. The request was granted.
The settlement did not encompass the issues raised by the City of Fort Myers concerning the intergovernmental coordination element. The City of Fort Myers orally requested a continuance of the hearing for at least a couple of days, so that one of its expert witnesses could attend the hearing to testify. The oral request was denied. By Order on Schedule of Proceedings entered September 21, 1989, the undersigned had previously denied the request of Lee County to set specific times and dates for parties to commence the presentation of their respective cases.
The following morning, the parties announced that the Lee County Commission had approved the settlement in principle and therefore sought an abatement of the portion of the case devoted to the issues encompassed in the settlement.
The request was granted.
The City of Fort Myers requested an abatement of the portion of the case devoted to the intergovernmental coordination issues. Lee County argued that the intergovernmental coordination issues were severable from the issues that had been settled and that it desired a prompt disposition of the intergovernmental coordination challenge. The request for abatement was denied. The City of Fort Myers renewed its request for a short continuance. The request was denied.
At the conclusion of the hearing, the City of Fort Myers renewed its request for a continuance. The request was denied. However, the undersigned indicated that the record could remain open to allow the City of Fort Myers to take depositions for use at the hearing, subject to the condition that the City of Fort Myers reimburse Lee County for certain expert witness fees and associated witness expenses. Lee County had had the witnesses available to testify at anytime during the hearing, but did not wish to take their testimony
in advance of the testimony of the expert witness to be called by the City of Fort Myers. Fort Myers refused to accept the condition, so the record concerning the intergovernmental coordination issues was closed at the end of the hearing.
The parties, except for the City of Fort Myers, subsequently filed on October 16, 1989, a Notice of Filing Stipulated Settlement Agreement, Joint Motion for Partial Abatement of Proceedings and Joint Motion for Severance of Intervenor Proceedings. The motions are hereby granted. A more detailed order on abatement will be issued separate from this recommended order.
This recommended order is partial in nature. The settlement process contemplates the amendment of the Lee County comprehensive plan. If the settlement process is successfully completed, then no additional recommended order would be issued, except possibly a recommended order of dismissal. If the settlement process is not successfully completed, a second hearing would be conducted and a second recommended order would be issued.
At the evidentiary hearing, the four parties stipulated to the standing of the City of Fort Myers and the City of Cape Coral.
The parties also stipulated that none of the allegations contained in Paragraphs 11-13, 17, and 18 of the Petition to Intervene of the City of Fort Myers had been, or would be, proven in the case, and that Lee County would not be required to respond to them. These are all but two of the allegations describing a proposed project known as the "Mid-Point Bridge," which would link Ft. Myers and Cape Coral. The remaining "Mid-Point Bridge" allegations are that the Lee County comprehensive plan provides for the construction of the bridge over the Caloosahatchee River and an elevated limited access expressway that would pass through Ft. Myers. Also, the bridge would be located between the Caloosahatchee Bridge to the northeast and the Cape Coral Bridge to the southwest.
Although no joint prehearing stipulation was filed, Lee County and the City of Fort Myers each filed unilateral prehearing stipulations on October 2, 1989. Both stipulations identify the intergovernmental coordination issue in substantially the same terms. The issue is whether the intergovernmental coordination element shows relationships and states principles and guidelines to be used in the accomplishment of coordination of the Plan with the comprehensive plans of adjacent municipalities. The City of Ft. Myers' unilateral prehearing stipulation states that proof of Paragraph 19 of its Petition to Intervene "relates only to the question of whether the text of the Lee County Comprehensive Plan Intergovernmental Coordination Element satisfies the requirements of Chapter 163 and Rule 9J-5."
Lee County's unilateral prehearing stipulation questions whether the Division of Administrative Hearings has jurisdiction of the case due to the alleged failure of the Department of Community Affairs to participate in the adoption hearing. The stipulation asserts that, due to this omission, the petitions of all intervenors, as well as the petition of the Department of Community Affairs, should be dismissed.
At the evidentiary hearing, the Department of Community Affairs called no witnesses and offered into evidence no exhibits. The City of Fort Myers called no witnesses and offered into evidence six exhibits. However, the City of Fort Myers proffered the testimony of its expert witness, Lane Kendig, who was not available to testify until later in the week. Lee County called one witness and
offered into evidence one exhibit. The City of Cape Coral called no witnesses and offered no exhibits, but joined in the evidence presented by Lee County.
All exhibits were admitted into evidence.
The transcript was filed on February 2, 1990. Lee County and the City of Fort Myers filed proposed recommended orders. Treatment accorded the proposed findings is detailed in the appendix.
FINDINGS OF FACT
Lee County is a local government that is required to prepare and submit to the state land planning agency a comprehensive plan pursuant to the provisions of Chapter 163, Part II, Florida Statutes ("the Act"). Section 163.3167, Florida Statutes. (All references to Sections and their corresponding Chapters are to Florida Statutes. All references to Rules and their corresponding Chapters are to the Florida Administrative Code.)
The Department of Community Affairs ("DCA") is the state land planning agency, pursuant to Section 163.3164(19). As such, DCA is responsible for reviewing the comprehensive plans of local governments and determining whether they are in compliance with the Act. Section 163.3184(8).
The City of Fort Myers ("Ft. Myers") and the City of Cape Coral ("Cape Coral") are municipalities located in Lee County. Relative to Lee County, they are adjoining local governments, pursuant to Section 163.3184(1)(a). Each municipality has standing in the above-styled case.
By Lee County Ordinance No. 89-02, adopted on January 31, 1989, Lee County adopted a comprehensive plan, effective March 1, 1989. (The Lee County comprehensive plan shall be referred to as "the Plan.")
Although not adopted as part of the Plan, two volumes of data and analysis, which are entitled "Support Documentation," accompany the Plan. (These materials shall be referred to as "the Data and Analysis.")
On March 24, 1989, DCA issued its Notice of Intent to Find the Lee County Comprehensive Plan Not in Compliance. The Notice of Intent is accompanied by a 24-page Statement of Intent to Find Comprehensive Plan Not in Compliance. The Statement of Intent details the various alleged deficiencies in the Plan, but omits any mention of the Intergovernmental Coordination element contained in the Plan.
On July 12, 1989, Ft. Myers filed its Petition for Leave to Intervene. Paragraph 19 of the petition alleges that the Intergovernmental Coordination Element of the Plan
fails to provide a strong and effective intergovernmental coordination element showing relationships and stating principles and guidelines to be used in the accomplishment of coordination of the [Plan] with the comprehensive plans of adjacent municipalities.
The Intergovernmental Coordination element of the Plan states:
GOAL 108: SERVICE COORDINATION. To provide
for efficient and effective coordination of provision of public services by Lee County and its special districts, bodies, boards, and other entities.
OBJECTIVE 108.1: SPECIAL DISTRICTS. By 1991,
a clearinghouse process shall be instituted to provide for the regular exchange of information, proposals, and plans between the county and its special districts, bodies, boards, and other entities.
POLICY 108.1.1: The office of the county administrator shall establish a special district clearinghouse, in coordination with district directors and managers, for the purpose of coordinating the programs, activities, and procedures for the provision of services and information.
OBJECTIVE 108.2: LEVEL-OF-SERVICE STANDARDS.
By 1991, conflicts in level-of-service standards for public facilities shall be resolved.
POLICY 108.2.1: The Planning Division shall prepare an inventory and analysis of the various level-of-service standards for public facilities and shall recommend means of coordinating those standards which are not in agreement.
POLICY 108.2.2: Where conflicts with other entities regarding service standards cannot be resolved through discussion among those concerned, the informal mediation process of the Southwest Florida Regional Planning Council shall be utilized to seek resolution.
POLICY 108.2.3: Development proposals within Lee County shall be reviewed for their impacts on levels of service for public facilities as stated in the comprehensive plans of adjacent governments.
OBJECTIVE 108.3: POLICY COORDINATION. By
1989, the Lee County Executive Advisory Committee shall be re-established in order to provide an intergovernmental policy coordination policy.
POLICY 108.3.1: The office of the county administrator shall be responsible for organizing meetings of the Executive Advisory Committee.
POLICY 108.3.2: The initial agenda for the Executive Advisory Committee shall be to discuss issues identified during the 1988 comprehensive plan revision process. Other items for discussion may include:
--discuss areas of mutual interest;
--establish and implement formal procedures
for mutual review of appropriate planning and policy documents;
--enter into agreements at the direction of and with the approval of the Lee County Board of Commissioners;
--encourage participation of representatives from adjacent and overlapping jurisdictions, and state and federal agencies to attend EAC meetings on a standing or specific basis when appropriate;
--utilize staff support of the appropriate planning departments; and
--schedule public meetings, when appropriate, to ensure citizen awareness.
POLICY 108.3.3: Lee County shall continue to:
--utilize the Metropolitan Planning Organization (MPO) for matters of coordination in transportation planning and implementation; and
--utilize the Technical Advisory Committee to the MPO in matter requiring
communication, cooperation, and coordination between Lee County and other jurisdictions.
GOAL 109: GROWTH MANAGEMENT. To coordinate
the plans and policies of Lee County, its municipalities, and adjacent local governments so as to guide, manage, and regulate urban growth in a compatible fashion.
OBJECTIVE 109.1: EFFECTS OF NEW DEVELOPMENT.
By 1990, the review of impacts of planned developments on the municipalities within Lee County and on adjacent counties, regional agencies, and other governmental units shall function in a coordinated and efficient manner.
POLICY 109.1.1: Lee County shall adopt formal coordination procedures for mandated planning activities with other local governments, regional agencies, the state, and other governmental units.
POLICY 109.1.2: Where conflicts regarding growth management and development issues cannot be resolved through discussion among those concerned, the informal mediation process of the Southwest Florida Regional Planning Council shall be used where judicial action can be avoided.
POLICY 109.1.3: Lee County shall enter into interlocal agreements with appropriate entities for the notification and exchange of information regarding changes in land use or zoning of areas within one mile of its boundaries.
POLICY 109.1.4: The county shall strive to negotiate interlocal agreements with all incorporated municipalities to resolve
planning issues relating to areas outside the cities' limits which they would like to target for annexation. "Urban Reserve" boundaries adopted in such agreements will be designated on the future land use map (see Policy 1.7.3).
POLICY 109.1.5: The county shall protect natural resource systems that cross governmental boundaries through the means described under Goal 82 of this plan.
POLICY 109.1.6: The county shall coordinate transportation planning and road improvements with other jurisdictions through the means described under Goal 28 of this plan.
POLICY 109.1.7: The county shall address the regional need for adequate sites for water- dependent uses through means described under Objective 98.7 of this plan.
POLICY 109.1.8: The county shall continue to pursue efforts to establish a plan for surface water management with the surrounding affected counties and affected municipalities within Lee County.
OBJECTIVE 109.2: POLITICAL INTERVENTION.
By 1989, vehicles for dialogue and communication with other local governments shall be initiated by Lee County to address issues which have an effect beyond the boundaries of unincorporated Lee County.
POLICY 109.2.1: In order to address issues which cross jurisdictional boundaries, during 1989 the chairman of the Board of County Commissioners shall initiate and coordinate interactions with political counterparts in municipalities and counties in the region.
The Data and Analysis accompanying the Intergovernmental Coordination Element contains an evaluation and appraisal report (the "EAR") concerning intergovernmental coordination provisions of the former comprehensive plan. The EAR notes that the Executive Advisory Committee is a permanent committee of the chief executive officers (or their designees) of the County, the municipalities, the Regional Planning Council, the School Board, and the South Florida Water Management District. The EAR states that the Executive Advisory Committee has been effective in the past, but has not met since 1984.
Addressing the Traffic Circulation Element of the proposed comprehensive plan of Ft. Myers, the EAR accompanying the Data and Analysis of the Intergovernmental Coordination Element merely notes the inconsistencies between the two plans as to the proposed Mid-Point Bridge.
The EAR concludes that the intergovernmental coordination goals, objectives, and policies of Lee County's former comprehensive plan are "very general and broad in
scope[, which] is unfortunate [because] this element provides an excellent opportunity to establish a better working relationship with other units of government."
The Data and Analysis underlying the Intergovernmental Coordination Element note that Lee County uses the following methods to ensure intergovernmental coordination: interlocal agreements, coordinating organizations, and informal working groups.
The Data and Analysis explain that interlocal agreements allow two or more units of government to integrate functions and provide services more efficiently than each could separately. The Mid-Point Bridge is not the subject of such an agreement.
The Data and Analysis state that Lee County is a member of three coordinating organizations. In addition to the Florida Association of Counties and the Southwest Florida Regional Planning Council, Lee County belongs to the Lee County Metropolitan Planning Organization (the "MPO"). The MPO, which consists of representatives from the governing boards of each local government in Lee County, is primarily concerned with transportation planning.
The Data and Analysis describe three working groups: the Regional Planning Council Technical Advisory Committee, which consists of representatives from the planning departments of each of the 19 local governments in the region, the Florida Department of Transportation, and other entities; the MPO Technical Advisory Committee, which consists of staffpersons from Lee County and the cities of Ft. Myers, Cape Coral, and Sanibel; and the now-dormant Executive Advisory Committee, which consisted of the chief executive officers of Lee County, the three municipalities, and three other entities.
The Data and Analysis analyze the three coordination mechanisms. The interlocal agreement is "only used when the solution to an issue has been decided upon." The interlocal agreement "has had only a small role in resolving disputes." Addressing specifically the Mid-Point Bridge dispute, the Data and Analysis note:
For over twenty years a new bridge across the Caloosahatchee has been discussed to connect the central portions of Cape Coral and Fort Myers. Although such a bridge would cause admitted difficulties on both sides of the river, the idea has persisted and gained momentum through the years. The obvious symptom was the increasingly paralyzing traffic backups, especially during the commuting hours, on the existing bridges.
The underlying causes of this congestion include both the area's general strong growth and also the extremely rapid construction of homes in Cape Coral, which had originally been intended as a retirement haven but instead has become a full-fledged city with all age groups well represented. Very little land was set aside for employment and commerce when Cape Coral was platted, and despite active efforts by both the Cape Coral and Lee County governments to allow business development
on the Cape Coral side of the river, most jobs still lie across the river.
Many studies have been conducted by all parties to this dispute. The mid-point bridge has at this point become a political issue of the greatest importance. Lee County leaders for years opposed the bridge but now are very actively supporting it as the only possible means of relieving the crippling traffic problems that have developed. The politics of the situation are such that no Cape Coral councilman could get elected without being an absolute proponent of the bridge, and no Ft. Myers councilman could get elected without being an absolute opponent.
Within this context it has become apparent to all parties that the solution lies not with intergovernmental cooperation in the normal sense but rather by resolving the legalities involved. Since the issue will ultimately be settled by the courts anyway, Lee County has decided to force the issue at this time by filing suit against the city of Ft. Myers over their resistance to the bridge and
their inclusion in their comprehensive plan of language to positively forbid the bridge. Just prior to the filing of this suit, a joint meeting was held between the city council and the county commission in a last attempt to resolve the difference. As this effort was entirely unsuccessful, the case is working its way through the courts. It is an emotional issue for all parties but
has not otherwise interfered with a generally friendly relationship between both governments on a multitude of other issues.
The Data and Analysis identify working groups as efficient methods of coordination between governments, but acknowledge that they were unsuccessful as to the Mid-Point Bridge issue.
The Traffic Circulation Element of the Plan states in relevant part: GOAL 24: MAJOR INTRA-COUNTY TRANSPORTATION
CORRIDORS. To provide for efficient intra-
county vehicular traffic by planning an integrated system of transportation corridors, possibly of limited access design, that connect urban centers within the county.
OBJECTIVE 24.1 MID-POINT CORRIDOR. Create a
new east-west transportation corridor, possibly of limited access design, across central Lee County in order to alleviate existing congestion of traffic crossing the Caloosahatchee River.
POLICY 24.1.1: The county will continue the planning, feasibility determination, and environmental impact assessment for the Mid-
Point Bridge.
POLICY 24.1.2: The construction of this east- west transportation corridor will be coordinated through the Metropolitan Planning Organization to ensure system-wide continuity.
POLICY 24.1.3: Due to the overriding public need to provide this critically important corridor so as to solve existing roadway deficiencies affecting most of Lee County, and due to the admitted impossibility of devising any alignment which would not generate at least some negative impacts, it is declared as the policy of Lee County that once the best alignment is selected, this policy shall preempt any other perceived conflicting portion of the Lee Plan and such conflicts, real or perceived, shall not be construed so as to require or justify blocking the construction of this facility.
POLICY 24.1.4: Because of the high priority Lee County places on the planning and construction of this transportation corridor, permitting efforts shall be initiated by the year 1989, if feasible, and construction shall begin, if possible, by the year 1993.
* * *
GOAL 28: INTERGOVERNMENTAL COORDINATION. Lee
County shall participate in and share the leadership of all necessary and desirable programs in coordinating the transportation planning and improvements of routes within or affecting Lee County.
OBJECTIVE 28.1: PLANNING. Lee County will continue to plan cooperatively with its municipalities, surrounding counties, and FDOT.
POLICY 28.1.1: The county will participate in the MPO and Regional Planning Council planning processes for system-wide facility needs.
POLICY 28.1.2: The county will use informal mediation whenever possible to resolve disputes before other formalized processes are pursued.
* * *
The Data and Analysis accompanying the Traffic Circulation Element contain an EAR for the transportation goals, objectives, and policies of the former comprehensive plan of Lee County. The EAR addresses only those goals, objectives, or policies for which modifications are recommended. Nothing concerning the Mid-Point Bridge is discussed in the EAR.
The Data and Analysis note that the continued rapid growth of Lee County necessitates major roads beyond a traffic circulation map dated November 26, 1986. One of the two major elements of the addition is an east-west corridor through Cape Coral and across the Caloosahatchee River. The second is
a continuous loop around central Lee County. Further studies will determine if the southwest quadrant of the loop could replace the east-west corridor.
The two major additions remain largely conceptual. The Data and Analysis explain:
The exact location, timing, and cost of these improvements cannot be easily determined until at least general alignments have been selected. The final alignment process is time-consuming because it must address and weigh a multitude of sometimes conflicting factors such as needed capacity, environmental impacts, affordability, engineering feasibility, neighborhood disruption, relative costs, air quality and noise impact, and permitting requirements. Moreover, this exercise must address more than one possible alignment and a "no-build" alternative.
To provide the necessary flexibility to allow this alignment selection process to function, the alignment for the east-west corridor was shown only in general form on the Traffic Circulation Plan Map (which was originally adopted November 16, 1984, amended on November 26, 1986, . . . and incorporated by reference as an integral part of the Lee Plan). A shaded corridor was shown that incorporated the alignment alternatives that have been previously studied. The bridge portion of this corridor is popularly known as the "Mid-Point Bridge." Another alternative which is also being considered was not shown on the Traffic Circulation
Plan Map because it was not sufficiently detailed as of the most recent revision. This alterative can generally be described as the accelerated construction of the southwest quadrant of a future loop expressway system which would include a crossing of the Caloosahatchee four to seven miles southwest of the existing Cape Coral Bridge, connecting Cape Coral from a point somewhere between Piney Point and Punta Blanca Creek, to the mainland at a point
somewhere between Iona Point and Punta Rassa Cove. The bridge which would be needed to accomplish this crossing has yet to acquire a popular name. For purposes of this element it is called the "Loop Bridge."
Ft. Myers opposes the construction of the Mid-Point Bridge and associated expressway, and Cape Coral supports the construction of the bridge and expressway. Provisions in the respective plans of the two municipalities
generally reflect these positions. The plan of Ft. Myers was adopted on February 13, 1989, but was in preparation and available to Lee County when it adopted the Plan.
No evidence was presented at the hearing that Lee County requested the participation of DCA at the adoption hearing or that DCA participated at the adoption hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Sections 120.57(1) and 163.3184, Florida Statutes.
Each local government is required to file with DCA a comprehensive plan that satisfies the requirements of Chapter 163, Part II (the "Act"). Section 163.3167((2).
A "major objective" of the planning process is the "[c]oordination of the local comprehensive plan with the comprehensive plans of adjacent municipalities, the county, adjacent regions, or the region . . .." Section 163.3177(4)(a). Toward that end, the plan "shall include a specific policy statement indicating the relationship of the proposed development of the area to the comprehensive plans of adjacent municipalities, the county, adjacent counties, or the region . . ., as the case may require and as such adopted plans or plans in preparation may exist." Id.
Each comprehensive plan must contain an intergovernmental coordination element
showing relationships and stating principles and guidelines to be used in the accomplishment of coordination of the adopted comprehensive plan with the plans of school boards and other units of local government providing services but not having regulatory authority over the use of land, with the comprehensive plans of adjacent municipalities, the county, adjacent counties, or the region . . ., as the case may require and as such adopted plans or plans in preparation may exist. This element of the local comprehensive plan shall demonstrate consideration of the particular effects of the local plan, when adopted, upon the development of adjacent municipalities, the county, adjacent counties, or the region . . ., as the case may require.
Section 163.3177(6)(h).
Chapter 9J-5 requires that the objectives of the intergovernmental coordination element
coordinate the comprehensive plan with . . . the comprehensive plans of adjacent municipalities [and] ensure that the local government addresses through coordination
mechanisms, the impacts of development proposed in the local comprehensive plan upon development in adjacent municipalities . . ..
Rule 9J-5.015(3)(b)1. and 2.
Chapter 9J-5 requires that the policies of the intergovernmental coordination element "address programs, activities, or procedures for"
resolving conflicts with other local governments through the regional planning council's informal mediation process ,
reviewing the relationship of proposed development of the area to the existing comprehensive plans of adjacent local governments . . ., [and reviewing] . . .
development proposed in the comprehensive plan including a policy statement indicating relationships of the proposed development to the existing comprehensive plans of adjacent local governments.
Rule 9J-5.015(3)(c)2., 5., and 6.
The present proceeding commenced under Section 163.3184(10), in which DCA issued a notice of intent finding the Plan not in compliance. In such a proceeding, DCA and affected persons who have intervened challenging the plan prevail if they show by a preponderance of the evidence that the plan is not in compliance. Section 163.3184(10).
Section 163.3184(8)(a) authorizes DCA to find a plan to be not in compliance only if DCA "has participated in the [adoption] hearing if requested to do so by the applicable local government." Given the findings and conclusions contained in the recommended order, it is unnecessary to consider:
1) any effect of the absence of proof of such a request from Lee County to DCA that it participate at the adoption hearing or 2) any effect of the absence of proof that, if so requested, DCA participated.
Although several bases exist for showing that a plan is not in compliance, only one is relevant in this case. Every comprehensive plan must be "consistent with" the requirements of Section 163.3177, among other sections, and Chapter 9J-5. Section 163.3184(1)(b). These authorities can be said to establish "minimum criteria" by which plans will be evaluated. Rule 9J-5.001.
In its memorandum accompanying the proposed recommended order, Ft. Myers states that its challenge to the Intergovernmental Coordination Element is based on three requirements of the Act. These requirements are that the Plan:
contain a specific policy statement indicating the relationship of development proposed in Lee County to the comprehensive plans of adjacent municipalities;
state principles and guidelines to use in the accomplishment of coordination with adjacent municipalities; and
demonstrate consideration of the particular effects of the Plan on development in adjacent municipalities.
Ft. Myers has failed to prove that the Plan fails to satisfy any of these statutory requirements or the corresponding requirements set forth in Rule 9J-5.015. The Plan contains many policy statements indicating the relationship of development in the county to the plans of adjacent municipalities. The specificity of the policy statements does not extend to a description of particular developments in Lee County and the direct effects of such developments upon specific provisions of the plans of other entities. However, such specificity, if possible, is not required.
The Plan discusses the relationship between development in the county and plans of other entities, and these discussions generally satisfy the requirement of a "policy statement." Individual instances of such objectives or policies in the Intergovernmental Coordination Element are those referring to the clearinghouse of information (Objective 108), mediation regarding standards of levels of service (Policy 108.2.2), review of development proposals for impacts on levels of service standards for facilities described in the plans of other entities (Policy 108.2.3), reestablishment of the Executive Advisory Committee (Objective 108.3), use of the Metropolitan Planning Organization and Technical Advisory Committee (Policy 108.3.3), review of planned developments for impacts on municipalities (Objective 109.1), use of interlocal agreements (Policies 109.1.3 and 109.1.4), and protection of natural resources covering more than one jurisdiction (Policy 109.1.5). Similar provisions exist under Goal 28 of the Traffic Circulation Element.
Lee County has demonstrated consideration of the effects of the Plan on development in adjacent municipalities. The requisite demonstration may be inferred from the Plan. The above-described objectives and policies reflect the requisite consideration. Additional consideration is found in the Data and Analysis accompanying the Intergovernmental Coordination and Traffic Circulation Elements. As to the Mid-Point Bridge, the Data and Analysis underlying the Intergovernmental Coordination Element summarize the history of the dispute and emphasize the positive effects of the project. Although focusing on categories of effects rather than particular effects, the Data and Analysis underlying the Traffic Circulation Element acknowledge environmental impacts, neighborhood disruption, air quality impacts, and noise impacts resulting from the project.
The Plan contains principles and guidelines for the achievement of coordination. Almost all of the principles involve methodologies and procedures, such as the use of the Executive Advisory Committee, Technical Advisory Committee, Metropolitan Planning Organization, mediation, and interlocal agreements to achieve coordination among the various entities. Specific guidelines are less evident. Policy 108.2.1 addresses guidelines in a limited fashion. The policy requires the Planning Division to inventory and analyze various levels of service standards for public facilities. However, the policy defers to the Planning Division the formulation of the means of coordinating inconsistent standards. Likewise, Policy 109.1.1 promises that Lee County shall adopt, at some unspecified time, formal coordination procedures with respect to the planning efforts of other entities.
The vagueness of the above-described "guidelines" is offset by one clear, substantive guideline set forth in Objective 24.1. This guideline, which is elaborated upon in Policy 24.1.3, subordinates all coordination efforts to the construction of the Mid-Point Bridge project. The Plan clearly provides
that, once the best alignment of the corridor is chosen, no other provision of the Plan, and thus no coordination activities, may result in the blocking of construction of the facility.
Ft. Myers objects to the priority given to the Mid-Point Bridge project. Without doubt, Lee County has taken the Mid-Point Bridge out of the process of intergovernmental coordination. The Data and Analysis disclose that the county has even commenced a legal action against Ft. Myers to resolve the dispute. However, the Data and Analysis reveal that these actions followed negotiations between the two entities that had led to a political impasse. Under these circumstances, the Plan's treatment of the Mid-Point Bridge project is not inconsistent with the requirements of the Act and Chapter 9J-5 regarding intergovernmental coordination.
As stated in Paragraph 7 of the Conclusions of Law of its Proposed Recommended Order, Ft. Myers identifies its ultimate objective as the amendment of the Plan to provide:
A goal to resolve the conflict over the proposed Mid-Point Bridge through an independent, objective, equitable, efficient and binding process as an alternative to litigation;
An objective that would provide for the abatement of pending litigation brought by the County against Fort Myers in Circuit Court to enter into a binding conflict resolution process that would provide a balanced determination of the need for and appropriateness of the proposed Mid-Point Bridge in terms of expressly articulated factors; and
A policy that would establish a fair and reasonable process for binding resolution of the dispute on the basis of factors such as countywide transportation needs; the comparative effectiveness and cost-benefit of reasonable alternative transportation solutions; social, cultural, economic and environmental impacts on the City of Fort Myers and Lee County; and long-term
financial feasibility and cost-effectiveness.
Nothing in the Act or Chapter 9J-5 requires that a plan contain a goal to resolve intergovernmental disputes by extra-judicial means, an objective to abate pending intergovernmental litigation, or a policy to establish a fair and reasonable (presumably nonjudicial) process for the binding resolution of intergovernmental disputes. Not all litigation is wasteful, just as not all alternative dispute-resolution processes are efficient. In fact, a binding alternative dispute-resolution process in which the parties retain the final authority for reaching an agreement, such as mediation (as opposed to arbitration), will not necessarily be productive where negotiations have already broken down.
With respect to the Mid-Point Bridge project, Lee County explored means short of litigation to settle the dispute. When these means produced no results, the county resorted to litigation to obtain a judicial declaration of
the parties' respective rights and responsibilities. Under these circumstances, intergovernmental coordination may be promoted by the intercession of an impartial adjudicator applying external principles of law to a dispute that the parties have been unable to resolve on their own.
The desire of Ft. Myers for plan amendments providing a balanced determination of the need for and appropriateness of the Mid-Point Bridge project based on various enumerated facts may imply that no legal remedy exists for the resolution of the dispute in this manner. There was no evidence of this. Even in the absence of an adequate legal remedy, the Act and Chapter 9J-5 do not require that a plan provide for the binding, nonjudicial resolution of such intergovernmental disputes.
On balance, for the reasons set forth above, the Plan is consistent with the intergovernmental coordination requirements contained in the Act and Chapter 9J-5.
Based on the foregoing, it is hereby
RECOMMENDED that the Administration Commission enter a Final Order dismissing the petition of the City of Fort Myers.
ENTERED this 6 day of April, 1990, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6 day of April, 1990.
APPENDIX
Treatment Accorded Ft. Myers' Proposed Findings
rejected as irrelevant. 2-3 adopted in substance.
4-5: rejected as subordinate. 6: adopted in substance.
7: adopted.
8-22: rejected as unsupported by the greater weight of the evidence and, in some cases, irrelevant.
Treatment Accorded Lee County's Proposed Findings
All of Lee County's proposed findings are adopted or adopted in substance except for Paragraphs 10, 11, 21, 22, and 25-28, which are rejected as conclusions of law.
COPIES FURNISHED:
David J. Russ, Senior Attorney Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399
Andrew C. Stansell Siemon, Larsen & Purdy
Mizner Administration Building
East Camino Real Boca Raton, FL 33432
Michael J. Ciccarone Assistant County Attorney
P.O. Box 398
Ft. Myers, FL 33432
William M. Powell City Attorney
P.O. Box 150027
Cape Coral, FL 33915-0027
James F. Murley
1000 Friends of Florida
P.O. Box 5948 Tallahassee, FL 32314
Thomas W. Reese
123 Eighth Street North St. Petersburg, FL 33701
Kenneth G. Oertel Scott Shirley
Oertel, Hoffman, et al.
P.O. Box 6507
Tallahassee, FL 32314-6507
Gary P. Sams Elizabeth C. Bowman Douglas S. Roberts Hopping, Boyd, et al.
P.O. Box 6526 Tallahassee, FL 32314
Frank B. Watson, Jr.
City Attorney
City of Fort Myers 2200 Second Street Ft. Myers, FL 33901
Harold N. Hume
Henderson, Franklin, et al.
P.O. Box 280
Ft. Myers, FL 33902-0280
David Emerson Bruner Chamber of Commerce Plaza 1114-B North Collier Blvd. Marco Island, FL 33937
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY )
AFFAIRS, )
)
Petitioner, )
)
and )
) 1000 FRIENDS OF FLORIDA, ) EUGENE BOYD, COMMITTEE OF THE ) ISLAND, INC., JAMES HAYES, ) RESPONSIBLE GROWTH MANAGEMENT ) COALITION, DONNA BUHL, and ) CITY OF FT. MYERS, )
)
Intervenors, )
)
vs. ) CASE NO. 89-1843GM
)
LEE COUNTY, )
)
Respondent, )
)
and )
) MARINER GROUP, INC., MARINER ) PROPERTIES, INC., and SOUTH ) SEAS RESORT LIMITED ) PARTNERSHIP, d/b/a SOUTH SEAS ) PLANTATION, )
)
Intervenors. )
) COMMITTEE OF THE ISLAND, ) INC. and RESPONSIBLE GROWTH ) MANAGEMENT COALITION )
)
Petitioners, )
)
vs. ) CASE NO. 90-7792GM
)
LEE COUNTY and DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled cases was held in Ft.
Myers and, by unanimous agreement, Tallahassee,
Florida, on May 4-7 and June 2, 1992, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner/Respondent Department of Community Affairs:
Michael P. Donaldson Assistant General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
For Intervenors/Petitioners Committee of the Island, Inc., Responsible Growth Management Coalition, and Donna Buhl:
Attorney Thomas W. Reese
123 Eighth Street North St. Petersburg, FL 33701
For Intervenors 1000 Friends of Florida and Eugene Boyd: Richard Grosso
Legal Director
1000 Friends of Florida
P.O. Box 5948
Tallahassee, FL 32314-5948 For Respondent Lee County:
Kenneth G. Oertel Scott Shirley
Oertel, Hoffman, Fernandez & Cole, P.A.
P.O. Box 6507
Tallahassee, Fl 32314-6507
For Intervenors Mariner Group, Inc., Mariner Properties, Inc., and South Seas Resort Limited Partnership, d/b/a South Seas Plantation:
No appearance
STATEMENT OF THE ISSUE
The dispositive issue in the above-styled cases is whether certain Lee County plan amendments and revisions to data and analysis are consistent with and substantially similar to the amendments and revisions described in a settlement agreement previously entered into by the parties.
PRELIMINARY STATEMENT
By petition filed April 4, 1989, the Department of Community Affairs commenced DOAH Case No. 89-1843GM. The petition generally alleges that the Lee County comprehensive plan adopted on January 31, 1989, is not in compliance and states the reasons.
Numerous parties filed petitions to intervene. Petitions (and dates filed) by parties remaining in the case by the time of final hearing are as follows: 1000 Friends of Florida and Eugene Boyd (April 14, 1989); Responsible Growth Management Coalition and Donna Buhl (May 15, 1989); Committee of the Island, Inc. and James Hayes (May 15, 1989; Mr. Hayes later voluntarily dismissed his petition); Mariner Group, Inc., Mariner Properties, Inc., and South Seas Plantation (June 1, 1989); and City of Ft. Myers (July 12, 1989).
By petition filed with the Department of Community Affairs on November 19, 1990, Responsible Growth Management Coalition and Committee of the Island, Inc. commenced DOAH Case No. 90-7792GM. The petition generally alleges that certain plan amendments are not in compliance and states the reasons.
The issues raised in DOAH Case Nos. 89-1843GM and 90-7792GM were clarified by orders entered April 16 and 28, 1992, as well as by rulings during the final hearing. For the reasons set forth in the Conclusions of Law, the issues addressed in this recommended order are limited to specific allegations that the settlement amendments (or, where appropriate, the amended plan) and revised data and analysis are not consistent with and substantially similar to relevant provisions of the settlement agreement. Accordingly, the issues are as follows (all issues raised only by Responsible Growth Management Coalition, Committee of the Island, Inc., and Donna Buhl, unless otherwise noted):
Whether, as provided by paragraph II.A of the settlement agreement, the 2010 overlay designates the proposed distribution, extent, and location of the generalized land uses required by Rule 9J-5.006(4)(a)1-9 for the year 2010. (RGMC, COTI, Buhl, 1000 Friends, and Boyd)
Whether, as provided by paragraph II.A of the settlement agreement, future land use overlay map 17 includes percentage distributions, rather than merely acreage totals.
Whether, as provided by paragraph II.A of the settlement agreement, the 2010 overlay future land use acreage designations are based on the 2010 population projections, given that the designations are based on
historic buildout estimates, rather than maximum densities permitted by each future land use designation.
Whether, as provided by paragraph II.B of the settlement agreement, the 2010 overlay and amended plan preclude the issuance of development approvals when such approvals would exceed applicable acreage totals, given the allowance of rezoning without regard to the 2010 overlay and amended plan. (COTI, RGMC, Buhl, 1000 Friends, and Boyd)
Whether the provisions of the amended plan basing future commercial land uses on the functional classification of adjoining roadways, together with the reclassification of 42 roadways from collectors to arterials in the subject plan amendments, inaccurately identifies the proposed location, extent, distribution, and intensity of future
commercial land uses. (1000 Friends and Boyd)
Whether, as provided by paragraph II.B of the settlement agreement, the 2010 overlay cannot be implemented, given the failure of the 2010 overlay to be implemented by rezoning and the absence of data concerning existing (1990) development.
Whether, as provided by paragraph III.C.3 of the settlement agreement, the amended plan creates transportation districts as contemplated by the agreement.
Whether, as provided by paragraph IV.A.4 of the settlement agreement, the amended future land use map contains a new land use category for lands in Bonita Springs and Lehigh Acres and the amended plan contains additional restrictions concerning incompatible land uses in these areas.
Whether, as provided by paragraph VI.B of the settlement agreement, the amended plan adopts the 3-day, 25-year standard for stormwater management and applies it to public and private development.
Whether, as provided by paragraph VI.C of the settlement agreement, the amended plan sets completion dates for the various phases of the Surface Water Management Master Plan.
Whether, as provided by paragraph VI.D of the settlement agreement, the amended plan imposes the 3-day, 24-hour standard for
stormwater management on redevelopment, other than designated historic districts and individual residences.
Whether, as provided by paragraph IX.D of the settlement agreement, the amended plan contains an objective and policies identifying wood stork feeding areas and habitat.
Whether, as provided by paragraph IX.E of the settlement agreement, the amended plan contains one or more policies protecting the Florida panther and black bear by specifically addressing, by June 30, 1991, the feasibility of creating wildlife corridors for this purpose.
The witnesses called and exhibits admitted are identified in the transcript and proposed recommended orders. Rulings on the proposed findings are set forth in Appendix A.
The record also includes the transcript and admitted exhibits from the October, 1989, hearing on the claims of Ft. Myers. The recommended order issued in April 1990 on these claims is attached as Appendix B.
The above-styled cases were tried with a related case, Brenda Sheridan v. Lee County and Department of Community Affairs, DOAH Case No. 90-7791GM. All transcript and exhibits will accompany the recommended order to be issued in DOAH Case No. 90-7791GM.
FINDINGS OF FACT
Background
The findings of fact concerning the claims of Ft. Myers are set forth in Appendix B.
Responsible Growth Management Coalition (RGMC), Committee of the Island, Inc. (COTI), Donna Buhl (Buhl), 1000 Friends of Florida (1000 Friends), and Eugene Boyd (Boyd) have standing.
Failing to appear at the final hearing and present any evidence or to obtain a stipulation concerning standing, Mariner Group, Inc., Mariner Properties, Inc., and South Seas Resort Limited Partnership, d/b/a South Seas Resort, have no standing under Section 163.3184(1)(a). However, these parties are parties to the settlement agreement that is described below. As parties to the settlement agreement, they have standing in a proceeding to interpret and enforce the settlement agreement.
Lee County adopted its comprehensive plan under Section 163, Part II, Florida Statutes, (the Act) on January 31, 1989 (without regard to the settlement amendments, the Plan). The Plan is contained in one of three volumes. The other two volumes contain the data and analysis originally submitted by Lee County to DCA with the Plan (Data and Analysis).
By petition filed April 4, 1989, the Department of Community Affairs (DCA) commenced DOAH Case No. 89-1843GM. The petition generally alleges that the Plan is not in compliance and states the reasons.
Numerous parties filed petitions to intervene. Petitions (and dates filed) by parties remaining in the case by the time of final hearing are as follows: 1000 Friends and Boyd (April 14, 1989); RGMC and Buhl (May 15, 1989); COTI and James Hayes (May 15, 1989; Mr. Hayes later voluntarily dismissed his petition); Mariner Group, Inc., Mariner Properties, Inc., and South Seas Plantation (June 1, 1989); and City of Ft. Myers (July 12, 1989) (collectively, except for Ft. Myers, referred to as the Remaining Challengers).
DOAH Case No. 89-1843GM was set for final hearing in October, 1989. At the commencement of the final hearing, all of the Remaining Challengers announced a settlement and obtained an abatement of the final hearing on their claims. The claims of Ft. Myers, which largely involved intergovernmental coordination and the construction of the Mid-Point Bridge, proceeded to hearing and resulted in the recommended order attached as Appendix B.
The recommended order concerning Ft. Myers' claims, which was entered on April 6, 1990, recommends that the Administration Commission enter a final order dismissing the petition of Ft. Myers. On June 27, 1990, the Administration Commission entered an Order of Remand. Without reaching the merits, the order requires that Ft. Myers' claims be determined in conjunction with the claims of the other parties.
In the meantime, Lee County, DCA, the Remaining Challengers, and other parties executed and delivered a settlement agreement on or before October 10, 1989 (Settlement Agreement). Described in greater detail below, the Settlement Agreement generally provides that all pending challenges would be dismissed if Lee County made certain amendments to the Plan and revisions to the Data and Analysis. On September 6 and 12, 1990, Lee County adopted amendments to the Plan (Settlement Amendments) and revised its Data and Analysis (Revised Data and Analysis).
The Settlement Amendments are set forth in three volumes. The first volume addresses traffic circulation issues and contains Settlement Amendments and Revised Data and Analysis concerning traffic only. The second volume addresses the 2010 overlay to the future land use map series and contains Settlement Amendments and Revised Data and Analysis concerning the future land use maps. The third volume contains Settlement Amendments and Revised Data and Analysis generally involving matters other than traffic and the future land use map series.
On or about October 29, 1990, DCA published a notice of intent to find the Settlement Amendments in compliance with the Act and Chapter 9J-5, Florida Administrative Code (collectively referred to as the growth management law).
On November 19, 1990, RGMC and COTI filed with DCA a petition alleging that the Settlement Amendments were not in compliance with the growth management law. This petition commenced DOAH Case No. 90-7792GM.
The Remaining Challengers objected to the dismissal of DOAH Case No. 89-1843GM on the grounds that the Settlement Amendments did not comply with the Settlement Agreement. DOAH Case Nos. 89-1843GM and 90-7792GM were consolidated
with two other challenges to the Settlement Amendments, Brenda Sheridan v. Lee County and Department of Community Affairs, DOAH Case No. 90- 7791GM, and Sylvan Zemel et al. v. Lee County and Department of Community Affairs, DOAH Case No.
90-7793GM.
On February 5, 1991, the undersigned entered an order stating that, as indicated by counsel for Ft. Myers during a conference on the same date, Ft. Myers would not be "calling witnesses or offering exhibits on the issues previously addressed in the partial recommended order issued in DOAH Case No. 89- 1843GM." Consistent with discussions during the telephone conference, the
order acknowledges that "the City will not seek contrary findings from those set forth in the partial recommended order."
The February 5 order also states that the hearing officer is "without jurisdiction to interpret, enforce, rescind, or invalidate the settlement agreement." The order notes that the hearing officer's sole jurisdiction is derived from Sections 163.3184(9) and (10), which demand that he determine if plans or plan amendments comply with the growth management law, not whether they comply with settlement agreements or other contracts. The order states that, "in the absence of judicial intervention, the cases will proceed as though the settlement agreement did not exist, although the agreement may be admissible for limited purposes not yet apparent."
The February 5 order indicates that the final hearing, which was then set to begin March 11, 1991, would be continued if any of the parties timely sought judicial review. By letter filed February 13, 1991, Lee County advised that it would be doing so, and the final hearing was continued to July, 1991.
Lee County subsequently pursued a judicial declaration in Lee County Circuit Court concerning the parties' rights and responsibilities under the Settlement Agreement. However, Lee County was unable to obtain a judicial declaration concerning the Settlement Agreement.
Shortly after the rendition of the February 5 order and an order entered March 6 denying DCA's motion for rehearing, DCA filed a petition with the First District Court of Appeal seeking review of these nonfinal administrative orders. DCA sought a court order that the hearing officer has the jurisdiction to construe and apply the settlement agreement.
On June 11, 1991, the First District Court of Appeal entered an order staying the above-styled cases and the Zemel and Sheridan cases. After an interim order allowing DOAH Case No. 90-7793GM to proceed, as Zemel et al. were not signatories to the settlement agreement, the First District Court of Appeal, on October 21, 1991, entered an order denying the petition for review of the Department of Community Affairs and returning jurisdiction to the Division of Administrative Hearings (DOAH).
Reasoning that review of the final agency decision would afford the parties an adequate remedy, the October 21 order notes that the hearing officer "has not had the opportunity to determine whether a party has waived any right to object by entering into the agreement or is estopped from taking a position different from a position taken in the agreement." A concurring opinion expresses "grave reservations about the hearing officer's suggestion that the parties take a portion of their dispute to the circuit court" and "trusts that the hearing officer [will] find guidance from Judge Shivers' perceptive observations concerning the possible relevance of the settlement agreement."
Sylvan Zemel et al. v. Lee County and Department of Community Affairs, DOAH Case No. 90-7793GM, proceeded to final hearing separately from the above- styled cases, and a recommended order has been issued in the case. DOAH Case Nos. 89-1843GM, 90- 7791GM, and 90-7792GM were heard together. A separate recommended order will be issued in DOAH Case No. 90-7791GM because Sheridan was not a party to the Settlement Agreement, and the Settlement Agreement controls the disposition of the two cases that are the subject of this recommended order.
General Provisions of Settlement Agreement
The Settlement Agreement is divided into two parts. The main body of the agreement contains general provisions. Exhibit A contains specific provisions describing the Settlement Amendments and Revised Data and Analysis required for the voluntary dismissal of the pending Plan challenges. These Settlement Amendments and Revised Data and Analysis are identified in the Settlement Agreement as the "Proposed Actions."
Paragraphs 18 and 19 of the Settlement Agreement provide:
Each party . . . retains the right, as provided herein, to have a final hearing in this proceeding on any and all issues which have been or may be raised and nothing in this agreement shall be deemed a waiver of such right.
Exhibit A . . . constitutes an admission and stipulation by [DCA] and the Intervenors [including the Remaining Challengers] that if the Proposed Actions are accomplished the [P]lan will be in compliance as to all issues raised in this proceeding, except the issue raised by Fort Myers in its Petition to Intervene.
Paragraph 24.a of the Settlement Agreement provides that if the Settlement Amendments and Revised Data and Analysis are "consistent with Exhibit A," DCA and the Remaining Challengers shall request DOAH to relinquish jurisdiction and jointly request the Administration Commission to issue a final order dismissing the proceeding as to all issues but those raised by Ft. Myers.
Paragraph 24.b of the Settlement Agreement provides that if Lee County fails to accomplish the Proposed Actions or if DCA deems the Settlement Amendments and Revised Data and Analysis as "not consistent with and substantially similar to the recommendations in Exhibit A," then DCA will notify DOAH of the need "for a hearing as provided in Subsection 163.3184(10)."
Paragraph 24.b adds that the question whether the Settlement Amendments and Revised Data and Analysis are
consistent with and substantially similar to the recommendations in Exhibit A shall be a threshold issue which the parties hereby stipulate shall be submitted to the DOAH Hearing Officer for resolution prior to a final hearing on the merits. If the DOAH hearing officer determines that said action
is consistent with and substantially similar to the recommendations in Exhibit A, a final hearing on the merits shall be unnecessary and the provisions of paragraph 24(a) shall apply. If the DOAH Hearing Officer determines that said action is not consistent with and substantially similar to the recommendations in Exhibit A, the matter shall proceed to final hearing.
Paragraph 24.b provides that the Plan challenges shall proceed to final hearing on the issue of compliance with the growth management law only if Lee County fails to adopt Settlement Amendments and submit Revised Data and Analysis consistent with and substantially similar to the Proposed Actions described in Exhibit A. Paragraph 24.b concludes: "In any proceeding under this section the evidentiary standards and provisions of Section 163.3184(10)(a) shall apply."
Paragraph 25 states:
The parties waive any right to appeal or initiate proceedings on, or to otherwise challenge on any ground in any forum, the plan as amended, so long as the provisions of this agreement are complied with. Each party reserves the right to appeal the inclusion of any amendment to the plan that is not included in this agreement.
Consisting of ten single-spaced pages of Proposed Actions, Exhibit A is divided into 12 sections: Introduction to the Lee Plan, Future Land Use, Traffic Circulation, Potable Water, Sanitary Sewer, Surface Water Management, Solid Waste, Capital Improvements, Conservation and Coastal Management, Procedures and Administration, Glossary, and Adopting Ordinance. Under each section, the document describes one or more items that need to be amended in the Plan or revised in the Data and Analysis.
Specific Provisions of Settlement Agreement, Settlement Amendments, and Revised Data and Analysis
Paragraph II.A of the Settlement Agreement provides:
Amend the Future Land Use Map series by designating the proposed distribution, extent, and location of the generalized land uses required by Rule 9J-5.006(4)(a)1-9 for the year 2010. These designations will include acreage totals and percentage distributions (illustrated by a bar graph) for about 125 discrete sub-districts encompassing all of Lee County, which, once designated, shall be changed only by a formal amendment to the Lee Plan. The data for these designations shall be consistent with the Lee Plan's populations projections for the year 2010. This amendment shall be accomplished by the adoption of overlay or
sub-district maps for the entire County using the concepts developed therefor by Thomas H. Roberts of Thomas H. Roberts Associates and presented publicly to the Board of County Commissioners of Lee County on September 12, 1989, and to the Department of Community Affairs on September 22, 1989.
Paragraph II.B of the Settlement Agreement states: "Adopt a policy which will provide that no development approvals for any land use category will be issued in any of the sub- districts described above that would cause the acreage total set for that land use category in 2010 to be exceeded."
Issue 1 asserts that the 2010 overlay fails to designate the proposed location of generalized land uses, as provided by Paragraph II.A of the Settlement Agreement.
The future land use map series for the Amended Plan is unusual. Table
25 in the Revised Data and Analysis identifies ten maps as the future land use map series. Joint Exhibit 10.b, page 71.
The key map of the future land use map series is Map 1, which is a typical future land use map assigning various future land use designations to the entire County. (Because Lee County does not have planning jurisdiction over the three municipalities, the designations given land within Ft. Myers, Cape Coral, and Sanibel are merely descriptive of the designations contained in the three respective plans.) Map 1 was revised in connection with the adoption of the Settlement Amendments, such as through the addition of the new Density Reduction/Groundwater Resource designation.
Two other important parts of the future land use map series are Map 16 and Map 17, which together constitute the 2010 overlay. Map 16 shows the location of 115 planning subdistricts in Lee County. "Map 17" is not a map, but a series of bar graphs showing, by each subdistrict, the acreages permitted for various land uses. Table 3 in the Revised Data and Analysis contains the same information as is found in Map 17, except in more precise tabular form, so that, for instance, the total vacant acreage allotted to subdistrict 101 is clearly
88.22 acres, rather than nearly 100 acres as appears on the bar graph constituting Map 17.
Map 1 shows future land uses projected through County- wide buildout, or about 2058. Maps 16 and 17 show future land uses through 2010, as explained by Future Land Use Element (FLUE) Policy 1.1.1: 1/
* The Future Land Use Map contained in this element is hereby adopted as the pattern for future development and substantial redevelopment within the unincorporated portion of Lee County. Maps 16 and 17 are an integral part of the Future Land Use Map series . . .. They depict the extent of development through the year 2010. No final development orders or building permits will be issued by Lee County which would allow the acreage totals for any land use category on these maps to be exceeded. The cities of Fort Myers, Cape Coral, and Sanibel are
depicted on this these maps only to indicate the approximate intensities of development permitted under the comprehensive plans of those cities. . . .
FLUE Policy 1.7.6 adds:
<<The Year' "2010 Overlay" '(see Maps 16 and 17 and Policies 1.1.1 and 2.2.2) depicts the
proposed distribution, extent, and location of generalized land uses for the year 2010. Acreage totals are provided for land in each subdistrict in unincorporated Lee County. No final development orders or building permits will be issued by Lee County which would allow the acreage totals for any land use category on these maps to be exceeded. The adopted acreage totals shall be reevaluated every three years, beginning in 1991.>>
FLUE Policy 2.2.2 states:
<<Map 1>> of Tthe Future Land Use Map series indicates the uses and density ranges that will ultimately be permitted on a given parcel. However, it is not a guarantee that such densities or uses are immediately appropriate, as the map provides for the county's growth over the coming 70 years.
During the rezoning process the Board of County Commissioners will balance the overall
standards and policies of this plan with [[two]]
<<three>> additional factors:
--whether a given proposal would further burden already overwhelmed existing and committed public facilities such that the approval should be delayed until the facilities can be constructed; 'or
--whether a given proposal is for land so far beyond existing development or adequate public facilities that approval should be delayed in an effort to encourage compact and efficient growth patterns.; <<or
--whether a given proposal would result in unreasonable development expectations which may not be achievable because of acreage limitations on the "Year 2010 Overlay" (see Policy 1.7.6 and Maps 16 and 17).>>
<<In all cases where rezoning is approved, such approval does not constitute a determination that the minimum acceptable levels of service (see Policy 70.1.3) will be available concurrent with the impacts of the proposed development. Such a determination must be
made prior to the issuance of additional
development permits, based on conditions which exist at that time, as required by Lee County's concurrency management system.>>
* Note: In the above quotation, language added to the statute
is within the <<>>; deleted language is within the [[]].
The 2010 overlay designates the proposed location of various future land uses in Lee County. Map 1 shows where certain land uses may generally be located for the next 70 years. Maps 16 and 17 limit and, to some extent, show the extent to which these land uses may be permitted for the next 20 years. Although the specific locations of land uses prior to 2010 are not disclosed by Maps 16 and 17, the generalized locations are.
Paragraph II.A provides that the designations "will include acreage totals and percentage distributions (illustrated by a bar graph) for about 125 discrete sub-districts encompassing all of Lee County, which, once designated, shall be changed only by a formal amendment to the Lee Plan." Lee County did just this in the Settlement Amendments and 2010 overlay.
RGMC, COTI, and Buhl assert that the word "includes" implies that the County was to do more than merely adopt the bar graphs that constitute Map 17 and the 115 planning subdistricts that are depicted on Map 16. Paragraph II.A adds:
This amendment shall be accomplished by the adoption of overlay or sub-district maps for the entire County using the concepts developed therefor by Thomas H. Roberts . . . and presented publicly to the Board of County Commissioners of Lee County on September 12, 1989, and to [DCA] on September 22, 1989.
It is unclear whether Lee County went beyond the concepts presented by Mr. Roberts on September 12 and 22, 1989. However, as to Issue 1, the Settlement Amendments are consistent with and substantially similar to the relevant provisions of Paragraph II.A of the Settlement Agreement.
Issue 2 asserts that the percentage distributions described in the above-quoted portion of Paragraph II.A were not adopted, but are included only in the Revised Data and Analysis. Although true, the percentage distributions of land uses and densities are implicit in Map 17. Significantly, Map 17 could not be changed without another amendment to the Amended Plan. Thus, even if the County decided upon different percentage distributions, it cannot alter the crucial acreage allotments contained in Map 17 without undergoing public participation and DCA review. As to Issue 2, the Settlement Amendments are consistent with and substantially similar to the relevant provisions of Paragraph II.A of the Settlement Agreement.
Issue 3 asserts that the 2010 overlay acreage allotments are based on the County's historic buildout estimates rather than maximum densities allowed for each residential category under the Amended Plan. Issue 3 asserts that this aspect of the 2010 overlay violates the requirement of the Settlement Agreement that the 2010 overlay "be consistent with the Lee Plan's population projections for the year 2010." Issue 3 notes that, due to the reliance on historic buildouts, the maximum densities greatly exceed the projected land needs for the 2010 population of Lee County.
Issue 3 alleges that the Settlement Amendments are not consistent with the following language of Paragraph II.A of the Settlement Agreement: "The data for the designations shall be consistent with the Lee Plan's population projections for the year 2010."
There is nothing wrong with the 2010 population projections, aside from the unnecessary additional level of imprecision introduced by Lee County's repeated inclusion of populations for the three municipalities and adjusted densities designated in each city's plan for the land within its jurisdiction.
The practice of which RGMC, COTI, and Buhl complain was evident in the Plan and Data and Analysis. Lee County was reducing the number of persons that the Plan could accommodate (by 2058) to reflect historic densities. To the extent that this methodology was insufficiently described or even improper, DCA and the Remaining Challengers had the opportunity to require in the Settlement Agreement that Lee County calculate its density allocation ratio either without regard to historic buildouts or with a preagreed historic buildout factor. As important, the Remaining Challengers and DCA could have insisted that Lee County adopt Settlement Amendments detailing a methodology for calculating density allocation ratios and a maximum density allocation ratio. But the Settlement Agreement is silent as to these vital elements.
The single reference to 2010 population projections in Paragraph II.A does not implicate the far more complicated issue of whether and to what extent Lee County may reduce projected 2010 densities to account for historic buildout densities, which are generally lower than the maximum densities permitted by the Amended Plan. The reference to 2010 population projections cannot support RGMC, COTI, and Buhl's challenge to, in effect, the density allocation ratios in the Amended Plan. As to Issue 3, the Settlement Amendments are consistent with and substantially similar to the relevant provisions of Paragraph II.A of the Settlement Agreement.
Issue 4 asserts that the Settlement Amendments fail to include a policy providing that no "development approvals" for any land use category issued in any of the subdistricts would cause the 2010 acreage total to be exceeded. The alleged problem is that the Amended Plan allows landowners to obtain rezonings for land uses that, due to the acreage limitations, may not result in final development orders because the planning subdistrict in which the rezoned land is located has already reached its allotted acreage for the land use to which the rezoning pertains.
However, FLUE Policy 1.1.1 clearly states that "[n]o final development orders or building permits will be issued by Lee County which would allow the acreage totals for any land use category on [Maps 16 and 17] to be exceeded." FLUE Policy 1.7.6 restates this concept, noting that the acreage totals have been "adopted." The most reasonable interpretation of "development approvals," as used in Paragraph II.B of the Settlement Agreement, is to mean that a development approval, without more, authorizes development. In other words, a development approval is a "final development order or building permit," as so stated in FLUE Policy 1.1.1.
Some confusion arises because of FLUE Policy 2.2.2, which unwisely addresses a rezoning process that is more appropriately left to the land development regulations and, in any event, is subordinate to the future land use designations and limitations in the Amended Plan, including the 2010 overlay. FLUE Policy 2.2.2 identifies three factors that the Board of County
Commissioners will balance when considering rezonings. The only condition in FLUE Policy 2.2.2 is in the flush language at the end, which warns that rezoning does not ensure that the property may be put to the rezoned use due to concurrency.
It would have been clearer if FLUE Policy 2.2.2 had restated the other precondition to putting the property to the use for which it may be rezoned-- i.e., that the use is consistent with the use designated in Map 1 for the area and the land subject to the use does not exceed the applicable acreage allotment set forth in Map 17. Even though unstated in Policy 2.2.2, these requirements from the future land use map series remain applicable. As to Issue 4, the Settlement Amendments are consistent with and substantially similar to the relevant provisions of Paragraph II.B of the Settlement Agreement.
Issue 5 asserts that the Amended Plan inaccurately identifies the proposed location, extent, distribution, and intensity of future commercial land uses. Issue 5 alleges that the County reclassified a number of roads, without supporting data or analysis, so as to allow more intensive commercial uses at a variety of locations. The relationship between the functional classification of roads and the intensity of commercial uses arises from the Amended Plan's requirement that the intensity of commercial uses is based in part on the proximity of roads of various functional classifications. Except for the allegations concerning the reclassification of roads, Issue 5 has been addressed in Issue 1.
Issue 5 is raised by 1000 Friends and Boyd, who assert in their proposed recommended order that the road reclassifications made at the time of the Settlement Amendments, although only part of the data and analysis, were not "authorized or contemplated by the Settlement Agreement."
The intensity of commercial uses under the Amended Plan is affected by the proximity and functional classification of roads. Without regard to the justification of Lee County departing from the Florida Department of Transportation's functional classification formulas for urban and rural roads, the interrelationship between the functional classification of roads and the intensity of commercial uses was evident in the Plan. The Remaining Challengers had an opportunity to address in the Settlement Agreement this perceived deficiency and failed to do so.
As to Issue 5, the reclassification of numerous road segments at or about the time of the Settlement Amendments is not inconsistent with or substantially dissimilar from any provision of the Settlement Agreement.
Issue 6 asserts that the 2010 overlay cannot be implemented because of the failure of the Amended Plan to require rezoning to implement the 2010 overlay and the absence of data concerning existing land uses. The issue of rezoning is addressed in Issue 4.
The sufficiency of the data regarding existing land uses by subdistrict is important. The acreage allotments by subdistrict are total acreages, encompassing land uses existing at the time of the Settlement Amendments and future land uses otherwise allowed by the Amended Plan. Without an adequate baseline in the form of existing land uses by category for each of the 115 subdistricts, the total acreage allotments by category for each of the
115 subdistricts would be meaningless.
However, the testimony of Lee County's Growth Management Director William Spikowski clearly established that the County has such data, updated from 1987 to 1990 for faster- growing subdistricts. Tr., page 122. Although these crucial data are not in the Revised Data and Analysis or Amended Plan, nothing in the Settlement Agreement requires their inclusion in these documents. As to Issue 6, the Settlement Amendments are consistent with and substantially similar to the provisions of Paragraph II.B of the Settlement Agreement.
Paragraph III.C.3 of the Settlement Agreement provides:
Backlogged facilities will be identified as those roadway segments operating (existing or under short-term projections) below the adopted level of service standards. Lee County will commit to the following program for backlogged facilities:
Lee County shall establish districts and designate county and state roadway networks within these districts. This network will be used for the calculation,
for concurrency purposes, of allowable growth on backlogged facilities. Lee County will annually estimate the capacities of all county and state collectors, arterial[s], and freeways within the district and determine the district-wide capacity surplus or deficiency. In making this calculation, Lee County may exclude from its consideration all state and county roads which are physically constrained from being widened.
During the first year following the execution of this agreement, backlogged facilities may be degraded by an average of 10% over the volumes that existed on the date of this agreement. By the end of the first year, Lee County will adopt a plan amendment which will set forth district traffic operational improvements (which may include signalization, turn lanes, parking improvements, etc.) on county and state roads which will further increase the capacities within each designated district. The plan amendment will also include those operational improvements in the 5-year CIP and will provide that they are expeditiously completed.
After adoption and approval of the amendment, Lee County may continue to issue permits that will impact the designated area as long as the capacity from the following sources, as a percentage of the total annually adjusted capacity, is equal to or greater than the annual percent increase of traffic in that area:
---surplus capacity under existing conditions;
---capacity increases from the interim improvements; and
---capacity increases from major improvements on county and state roads that are under contract for construction.
In the event that the surplus capacity percentage identified above is less than the actual percentage increase of traffic growth in that area, no permits affecting the backlogged facilities will be issued; however, growth on roads with surplus capacity may still be approved.
The percentage increase, as identified above, will be calculated and adopted on an annual basis within the concurrency management ordinance.
Within three years from the execution of this agreement, Lee County will adopt a plan amendment which sets forth major capital improvements to state roadways which are calculated to achieve the adopted levels of service on those roadways by December 31, 1999. These improvements shall be incorporated into Lee County's 5-year CIP. After adoption and approval of the amendment, Lee County may continue to issue permits that will impact the designated area as long as the district-wide percent surplus capacity and the capacity increases from the major capital improvements are equal to or greater than the percent increase of traffic in that area between the date of the plan amendment and December 31, 1999. After December 31, 1999, Lee County shall utilize a concurrency analysis that is based on a segment-by- segment analysis of state roads rather than a district-wide approach.
Issue 7 asserts that the Amended Plan does not create transportation districts as provided by Paragraph III.C.3 of the Settlement Agreement. In their proposed recommended order, RGMC, COTI, and Buhl argue that the nine traffic districts that Lee County established in the Settlement Amendments are too large and are not supported by the data in terms of any correlation between the traffic districts, on the one hand, and traffic analysis zones, transportation facilities function, or commuting patterns, on the other hand.
Traffic Circulation Element (TCE) Policy 22.1.2 states:
<<The minimum acceptable levels of service specified in Policy 22.1.1 shall not apply on an interim basis to the backlogged roads identified in Table 2(a). It is the County's intent that those segments will be improved to the identified standard in the shortest
period possible, but no later than December 31, 1999. During that interim
period, however, growth on those backlogged roads may be permitted if it is consistent with the Traffic District Program (Policy 22.1.5) and Interim/Operational Improvements Program (Policy 22.1.6).>>
TCE Policy 22.1.5 provides:
<<A Traffic District Program is hereby established for purposes of determining allowable development affecting backlogged roads. On at least an annual basis, Lee County shall estimate the service volumes for all City, County and State collectors, arterials and freeways within each traffic district, and shall determine the district- wide service volume surplus or deficiency.>>
<<1. Development permits that affect a backlogged road may still be approved provided that the surplus service volume resulting from the existing surplus service volume, any service volume increases due to committed roadway improvements, and any service volume increases due to interim improvements (reported as a percent of existing service volume on a district basis) is equal to or exceeds the annual percent increase in traffic on a traffic district basis. However, such permits will be issued only if mitigation is provided in accordance with Policy 22.1.13.>>
<<2. In the event that the percent service volume growth identified above on a traffic district basis is less than the percent traffic growth in that district, no permits will be issued by Lee County for development that affects the backlogged segment. Such development will be permitted only if
capacity enhancement and/or operational improvements are programmed for implementation within the specific District so that the total service volume growth for the District will again be equal to or greater than the District traffic growth. Growth on non-backlogged roads will not be affected. Development that does not affect the backlogged segment will still be allowed.>>
<<3. For purposes of calculating service volumes for the Traffic District Program, the following rules apply:
Constrained roads (see Table 2(b)) will not be included in the determination of
traffic growth and percent service volumes.
Percent traffic growth will be based on the last full year of traffic count information.
Committed roadway improvements for purposes of this calculation are those improvements under a current construction contract.>>
TCE Policy 22.1.6 states:
<<For the identified backlogged roads (see Table 2(a)), and as any additional backlogged roads may emerge over time, an Interim/ Operational Improvement Program will be established. The Interim/Operational Improvement Program will include the following types of improvements:
Phased improvements, representing a staged implementation of the eventual improvement that is needed to return the backlogged road to the minimum acceptable level of service.
Operational improvements, representing short-term measures to improve traffic operations and expand capacity prior to the eventual roadway improvement.>>
<<The initial Interim/Operational Improvement Program for backlogged roads is identified in Table 2(c).>>
<<On an annual basis, a minimum of five backlogged roads will be studied in detail by Lee County with specific interim/operational improvements identified. Specific interim/ operational improvements shall be incorporated into the County's Capital Improvements Program. Initially, six backlogged roads have been studied in detail including portions of US 41 South, US 41 North, McGregor Boulevard, Gladiolus Drive, San Carlos Boulevard, and Metro Parkway. The selection of specific interim/operational improvements to be constructed in any given year may be adjusted as deemed necessary by Lee County to reflect developer funding opportunities, adjustments to construction schedules, other agency improvement projects and schedules, and alternative improvements of a comparable nature. Specific interim/ operational improvements shall be included in all following updates of the County's Capital Improvements Program to ensure the expeditious construction of those improvements.>>
TCE Policy 22.1.8 assures that, "[a]fter December 31, 1999, Lee County shall measure concurrency on all roads on a roadway segment-by-segment basis rather than using the Traffic District Program contained in this plan."
TCE Policy 22.1.13 provides:
<<All proposed development activity, as part of the concurrency management process, will be reviewed against the Traffic District
Program, the Interim/Operational Improvement Program for backlogged roads and the Operational Improvement Program for constrained roads. Development activity affecting backlogged and constrained roads will be required to mitigate its traffic impacts:
For that development activity determined not to affect a backlogged and/or constrained road segment, traffic mitigation will consist of payment of Roads Impact Fees and needed intersection improvements at the site entrance(s).
For development activity determined to affect a backlogged and/or constrained road segment, traffic mitigation may include, but not necessarily be limited to, the following:
Advanced, lump sum payment of Roads Impact Fees to Lee County;
Developer construction or financing, with Lee County approval, of one or more of the interim or operational improvements identified in the Interim/ Operational Improvement Program for backlogged roads or the Operational Improvement Program for constrained roads;
Developer prepares, with Lee County approval, a detailed Interim/Operational Improvement Program for the affected road(s) and funds one or more of the needed interim or operational improvements; and
Developer funding of needed road improvements.>>
<<Lee County's Concurrency Management Ordinance shall be amended prior to the end of 1990 to specify the impact mitigation procedure and threshold measurements for mitigation purposes.>>
The establishment of the Traffic Districts for backlogged roads is left to the Revised Data and Analysis. At page VI-7 of Joint Exhibit 10.a is a map dividing Lee County into nine traffic districts. Only six districts cover the entire mainland. However, the districts approximate the preexisting districts created by Lee County in the implementation of its traffic impact fee program.
Again, the Remaining Challengers isolate a critical aspect of the Proposed Actions implemented by Lee County and challenge the sufficiency of the amendments and revisions. The combination of the service/traffic formula and the vast areas covered by the mainland districts will not facilitate efforts to alleviate backlogged roads in Lee County. 2/ However, nothing in the Settlement Agreement requires Lee County to identify a specific number of traffic districts or to adopt these traffic districts in the Amended Plan, rather than the Revised Data and Analysis. To the extent Issue 7 addresses indirectly the service/traffic formula itself, Paragraph III.C.3.c specifically provides for the formula that is set forth in TCE Policy 22.1.5.1, as it is explained in the Revised Data and Analysis discussed in the preceding endnote. As to Issue 7, the Settlement Amendments are consistent with and substantially similar to the relevant provisions of Paragraph III.C.3 of the Settlement Agreement.
Paragraph IV.A of the Settlement Agreement provides:
Implement an interim program while the studies called for by Objective 41.3 are being undertaken by amending the plan to take the following actions to protect water resources:
Designate land within the Bonita Springs area, as defined on the Future Land Use Map (page II-2(d) of the Lee Plan), as a "critical area" for potable water supply, based on evidence that withdrawals from the main potable aquifer are approaching or exceeding the maximum safe yield. Based on the SFWMD rule interpretation concerning the negative impacts of irrigation wells on potable water reserves and wetlands, adopt a policy requiring Lee County to modify its well construction permitting program to prevent irrigation wells from being constructed into the main potable water source in this area.
Designate land within the Lehigh Acres area, as generally bounded by the Privately Funded Infrastructure overlay zone on the Future Land Use Map (page II-2(e) of the Lee Plan), as another "critical area" for potable water supply. Due to fluctuations in water levels in the Sandstone aquifer, adopt a policy requiring Lee County to modify its well construction permitting program to require that all new wells in this area be constructed to accommodate submersible pumps.
Adopt a policy requiring all proposed changes to the Future Land Use Map in both critical areas will be subject to a special review by Lee County and SFWMD staff to determine the short-term and long-term availability of irrigation and domestic water
sources. Adopt a second policy making any approvals contingent on a formal finding by the Board of County Commissioners that no significant impact on present or future water resources will occur.
Create a new category on the Future Land Use Map to designate appropriate lands within or near the critical areas as groundwater resources. Additional restrictions on incompatible land development will be applied on land so designated.
* * *
Issue 8 asserts that the Settlement Amendments fails to comply with Paragraph IV.A.4 by failing to include on the amended future land use map a new land use category for lands in Bonita Springs and Lehigh Acres and by failing to include in the Amended Plan additional restrictions concerning incompatible land uses in these areas.
Contrary to DCA's initial objections to the Settlement Amendments concerning the new future land use category for Lehigh Acres and Bonita Springs, nothing in the Settlement Agreement requires that these areas be designated Density Reduction/Groundwater Resource. However, the Settlement Agreement contemplates that these two areas would be given a special overlay on the future land use map in order to reflect their special hydrologic sensitivity.
The key requirement in the Settlement Agreement is that the Amended Plan impose special land use restrictions on the Lehigh Acres and Bonita Springs areas. Although Lee County failed to give these areas a special future land use designation or overlay, the County more importantly placed important water restrictions on the two areas, thereby effectively accomplishing the same purpose. As to Issue 8, the Settlement Amendments are consistent with and substantially similar to the relevant provisions of Paragraph IV.A.4 of the Settlement Agreement.
Paragraph VI.B of the Settlement Agreement provides: "Adopt the level of service standard currently used by the South Florida Water Management District (generally described as a three-day, twenty-five year storm event) and make it applicable to both public and private development."
Issue 9 asserts that the Settlement Amendments fail to adopt the 3- day, 25-year standard for stormwater management and apply it to public and private development, as provided by Paragraph VI.B of the Settlement Agreement.
Community Facilities and Services Element (Community Facilities) Objective 38.3 is to "[r]evise by 1994 the surface water management level-of- service standards for basins and sub- basins identified in the Surface Water Management Master Plan." The Surface Water Management Master Plan was to have begun in 1989, according to Community Facilities Policy 38.1.1.
* 76. Community Facilities 38.3.1 provides:
As an interim measure, the following surface water management standards are adopted as minimum acceptable levels of service for unincorporated Lee County . . .:
<<"Existing">> [[Public]] "Infrastructure" The [[public stormwater]] <<existing>> [[trunk]]
<<surface water>> management system [[in any basin]] in the unincorporated areas of the county, [[including drainage districts]] shall be sufficient to
prevent the flooding of <<designated evacuation routes (see Map 15) from the 25-year, 3-day storm event (rainfall)>> [[the public roads to a
depth of 12 inches or greater]] for more than [[3 consecutive days]] <<24 hours>>.
"Regulation of Private <<and Public>> Development"
Surface water management systems in <<new>> private <<and public>> developments <<(excluding widening of existing roads)>> shall <<be designed to detain or retain excess stormwater to
match the predevelopment discharge rate for>> [[meet or exceed]] the <<25-year, 3-day storm event (rainfall)>>. [[minimum standards of the South Florida Water Management District as set
forth in the Permit Information Manual, Volume IV, Management and Storage of Surface Water (West Palm Beach, 1986), as may be amended from time to time, and shall meet
local regulations in order]] <<This standard is designed>> to minimize <<increases of>> discharges to public water management infrastructure (or
to evapotranspiration) that exceed historic
<<rates>> [[natural volumes]], to minimize change to the historic [[natural]] hydroperiod of receiving waters, to maintain the quality of receiving
waters, [[at or above the applicable minimum standards set forth in Chapter 17-3, Florida Administrative Code ("Water Quality Standards," Florida DER),]] and to eliminate
the disruption of wetlands and flow-ways, [[the whose]] preservation [[of which]] is deemed in the public interest.
* Note: In the above quotation, language added to the statute
is within the <<>>; deleted language is within the [[]].
In their proposed recommended order, RGMC, COTI, and Buhl argue that the Settlement Amendments are inconsistent with Paragraph VI.B of the Settlement Agreement because the stormwater level of service standard is imposed only on designated evacuation routes and road-widening projects are excluded from the standard.
However, the focus of Paragraph VI.B of the Settlement Agreement is on ensuring that the 3-day, 25-year stormwater standard is applied to public development, as well as private development. Policy 38.3.1.B does exactly that by requiring that new public development is subject to the 3-day, 25-year stormwater standard. Except perhaps in the atypical case in which a two-lane road is widened into a four- or six-lane limited-access freeway, road-widening projects are redevelopment, not development, so the exclusion was unnecessary. In any event, Community Services Policy 38.3.1.B is consistent with and substantially similar to Paragraph VI.B of the Settlement Agreement.
Community Services Policy 38.3.1.A is also consistent with and substantially similar to Paragraph VI.B of the Settlement Agreement. As noted above, Paragraph VI.B applies to public development, so its focus is prospective. Policy 38.3.1.A imposes the 3-day, 25-year stormwater standard-- with respect to evacuation routes--on all development (with no exception for road-widening projects) and redevelopment; moreover, the language implies that retrofitting is required where, even in the absence of development or redevelopment, the current stormwater system fails to meet the 3-day, 25-year standard on evacuation routes.
As to Issue 9, the Settlement Amendments are consistent with and substantially similar to the relevant provisions of Paragraph VI.B of the Settlement Agreement.
Paragraph VI.C of the Settlement Agreement states: "Provide in the support document a summary of the scope of work for the county's Surface Water Management Master Plan, including specific completion dates for various phases of the project."
Issue 10 asserts that the Amended Plan fails to set completion dates for various phases of the Surface Water Management Master Plan, as provided by Paragraph VI.C of the Settlement Agreement. As noted in the preceding paragraph, Paragraph VI.C of the Settlement Agreement requires only that the Revised Data and Analysis, not the Amended Plan, summarize the scope of work for the Surface Water Management Master Plan, including "specific completion dates for various phases of the project."
Paragraph VI.C of the Settlement Agreement imposes upon the County no requirements in terms of the scope of the work for the Surface Water Management Master Plan. The only requirement is that the Revised Data and Analysis describe the scope of the work--whatever it may be--and include in the description specific completion dates for various phases of the project.
The Plan itself described the scope of the Surface Water Management Master Plan Project when the Settlement Agreement was entered into. Community Services Policy 38.1.1 states:
Begin during 1989 a detailed Surface Water Management Master Plan to identify the existing watershed basin boundaries within Lee County, to evaluate the storm capacity and establish design criteria, and to determine costs for surface water management within each basin to meet applicable design storm standards.
Community Services Policy 38.1.5 adds:
<<Public hearings on Lee Plan amendments will be held by the end of 1990 to incorporate the initial findings of the Surface Water Management Master Plan. These amendments will specifically address:
incorporating the newly developed database into the Lee Plan;
modifying the interim level-of-service standards; and
modifying the Future Land Use, Community Facilities and Services, and Capital Improvements elements as necessary to incorporate the study's initial findings.>>
The Revised Data and Analysis explain:
To help meet the needs of adequate flood protection, clean and abundant water supply and protection of environmentally sensitive lands, Lee County has begun work on a surface water management master plan. Its goals are to identify inadequacies in the existing drainage systems and provide solutions through proposed surface water management for water quality and quantity. It will ultimately provide design criteria, standards, and regulations for new development as well as retrofitting of existing systems.
* * *
The scope of work for the SWMMP [Surface Water Management Master Plan contract] includes a public involvement program, data acquisition and analyses, prioritization of water sheds and review of alternate solutions, funding, an interim plan, and a detailed watershed plan for the Six Mile Cypress Basin.
* * *
The data acquisition and analyses phase involves the research and gathering of available information from existing watershed plans and studies and historical data. This information will then be analyzed for accuracy and applicability to today's conditions and entered into a retrievable database. It will likely consist of rainfall data, flood levels, flow data, water quality parameters, sensitive lands inventory,
existing conveyance data, rights-of-way, computer modeling input/output, watershed boundaries, etc.
This work has a completion date of late spring 1990. Database and overlay maps will be placed into the county's computer system. A summary of this study will be placed into the supporting documentation of the Lee Plan.
The master plan will also develop a systematic method of analysis for prioritizing watershed. A rating of flood prone areas will be based on criteria such as hydraulic/hydrologic patterns, existing development patterns, development potential (as shown in the Lee Plan), environmental issues (wetlands, water quality, etc.), the possibility of multiple uses of conveyance corridors, land use compatibility and ownership patterns, and opportunity/ feasibility of improvements. Cost/benefit analyses and level of service standards will be developed. In addition, a SFWMD Conceptual permit will be requested for the interim plan and for the Six Mile Cypress Watershed Plan. This will establish the design guidelines for future planning and construction permitting.
Additionally, the master plan will evaluate existing and potential funding opportunities. Investigation of the feasibility of a surface water management utility will be specifically included.
The general fund is the major source of financing for current stormwater projects. Stormwater management usually remains a low priority until a major flood or several severe storms actually damage property or threaten lives. One of the major tasks of the SWMMP is studying the feasibility of creating a surface water management utility. This utility would allow the county to finance improvements through a "user fee" approach. Basically, a user charge is assigned to each fee payer based on their contribution to the problem; e.g., the more stormwater run-off generated by the property, the higher the fee would be. . . .
According to an analysis prepared for Lee County, the general fund and a stormwater utility are the only two funding sources capable of addressing a stormwater management program on a county-wide basis. They further
state that the stormwater utility is the most equitable means of allocating stormwater management costs.
. . . the set-up time for . . . a [stormwater utility and billing] program would be two to three years; 16 to 24 months for program development and an additional 6 to 10 months for implementation of a master account file and billing system.
* * *
As of this writing, a feasibility report has been drafted which includes the parcel analysis summary, the revenue and expense projections, the master capital improvement plan which lists several alternatives, and the projected administrative, billing, and operations costs. The second phase of this project is now underway to actually implement the utility.
Both primary (trunk) and secondary (limb and branches) conveyance systems will be looked at in regard to existing capacities, needed improvements, availability of rights-of-way and easements, and construction costs.
Potential for groundwater recharge, water quality improvements, and funding will also be addressed.
The combination of all the above phases and the detailed analyses of specific watersheds will constitute the basis for the Lee County Surface Water Management Master Plan. The county has selected the Six Mile Cypress Watershed as its "pilot program" because of the intense development pressures and numerous environmentally sensitive issues in that area. This pilot program will be used as a framework for investigating other watersheds. The Six Mile Cypress Watershed program will serve as the accepted guidance (as a database) for other watersheds until such time they are also investigated.
The Six Mile Cypress Watershed and the interim plan are scheduled for completion as follows:
Completion Date
Task 1 Meetings, Workshop, and Agency Coordination
November 1990 Task 2 Data Acquisition
March 1990 Task 3 Analysis of Existing Data and Development of Interim Plan Approach
April 1990 Task 4 Prioritization and Review of Alternatives
May 1990 Task 5 Funding-- Determination of Sources
May 1990 Task 6 Interim Surface Water Management Master Plan
March 1990 Task 46-A Master Watershed Plan for Six Mile Cypress (Primary and Secondary Systems)
November 1990 Task 5' Utility Implementation
NOTE: Other Master Watershed Plans to follow upon completion of Task 46-A and Task 4.
Joint Exhibit 10.c, pages VI-6 to VI-9.
Recognizing that nothing in the Settlement Agreement establishes the scope of the Surface Water Management Master Plan, the Revised Data and Analysis adequately describe the scope of work and relevant completion dates for "various phases" of the project. As to Issue 10, the Revised Data and Analysis is consistent with and substantially similar to the relevant provisions of Paragraph VI.C of the Settlement Agreement.
Paragraph VI.D of the Settlement Agreement provides: "Add a policy providing that the County will require redeveloped sites, other than sites in designated historic districts and individual residential structures throughout the County, to meet the stormwater management requirements for new development."
Issue 11 asserts that the Amended Plan fails to impose the 3-day, 25- year stormwater management standard on redevelopment, other than individual residences or redevelopment in designated historic districts, as provided by Paragraph VI.D of the Settlement Agreement.
Community Facilities Policy 38.1.6 provides:
<<Within one year after the adoption of this policy, Lee County shall amend its land development regulations to require that proper stormwater management systems be installed when land is being redeveloped.
Appropriate exemptions shall be provided to this requirement for individual residential structures and for historic districts. The
regulations may also provide modified stormwater management standards for publicly sponsored projects within community redevelopment areas (as defined by Chapter 163, Part III, Florida Statutes). However, this policy shall not be interpreted so as to waive any concurrency level-of-service standards.>>
RGMC, COTI, and Buhl argue in their proposed recommended order that the provision for modified stormwater standards for publicly sponsored projects within community redevelopment areas should be limited to cases where the addition of stormwater systems in such redevelopment projects is environmentally or financially unfeasible.
There are communities in Lee County, such as Harlem Heights, where the housing is seriously substandard and the community is eligible for publicly sponsored redevelopment, as well as interim assistance through such projects as Habitat for Humanity. Evidently due to relatively low elevations, at least when the housing is compared to adjacent roadways, the Harlem Heights community also suffers from a seriously inadequate (and possibly nonexistent) stormwater management system.
Ideally, all areas within Lee County should be subject to, and receive the benefits of, Amended Plan provisions concerning stormwater management. However, communities desperately in need of publicly funded redevelopment, such as Harlem Heights, present a special challenge. As a practical matter, Community Facilities Policy 38.1.6, which is limited to publicly sponsored projects within community redevelopment areas, represents a fair accommodation of competing policy demands in providing adequate stormwater management and decent, affordable housing. Even without the additional qualifications sought by RGMC, COTI, and Buhl, the Settlement Amendments are consistent with and substantially similar to the relevant provisions of Paragraph VI.D of the Settlement Agreement.
Paragraph IX.D of the Settlement Agreement states: "Add an objective and policy (or policies) identifying the wood stork's feeding areas and habitat and committing to habitat protection measures by December 31, 1990."
Issue 12 asserts that the Amended Plan fails to contain an objective and policy identifying wood stork feeding areas and habitat, as provided by Paragraph IX.D of the Settlement Agreement.
Conservation and Coastal Management Element (Conservation) Objective
77.10 states: "WOOD STORK. By July, 1991, regulatory measures to protect the wood stork's feeding and roosting areas and habitat shall be adopted and enforced by Lee County."
The policy cluster under Conservation Objective 77.10 provide:
<<Policy 77.10.1: By December 31, 1990, the Protected Species Ordinance (#89-34) and its administrative code (AC-13-10) shall include wood storks as a Lee County Listed Species, requiring surveys for and protection of wood stork habitat. The county shall maintain an inventory of documented feeding, roosting,
and rooking areas for the wood stork to ensure that surveys submitted through the Protected Species Ordinance include such areas.>>
<<Policy 77.10.2: By December 31, 1990, the county shall require management plans for existing wood stork feeding, roosting, and rooking areas to utilize "Habitat Management Guidelines for the Wood Stork in the Southeast Region" (U.S. Fish and Wildlife Service, 1990).>>
<<Policy 77.10.3: By July 1991, the county shall provide incentives for the creation of wood stork feeding areas in mandatory littoral shelf design, construction, and planting. These incentives shall include relief from 50% of the shrub requirements in exchange for fish entrapment areas.>>
<<Policy 77.10.4: By July 1991, the county shall identify wood stork flight patterns from roosting and rooking areas to feeding areas within the county. Regulations protecting significant flight areas shall be adopted by July 1992, restricting the construction of tall structures such as broadcast towers (see Policy 2.1.5).>>
Conservation Policy 77.10.1 requires Lee County to keep an inventory of wood stork feeding, roosting, and rooking areas to ensure that developer- provided surveys include such areas. The Revised Data and Analysis indicate that the County is already aware of certain of such areas.
Conservation Policy 77.10.2 requires, by December 31, 1990, Lee County to demand that management plans for existing wood stork feeding, roosting, and rooking areas use regionally applicable U.S. Fish and Wildlife Service guidelines for habitat management. Presumably, the requirement of management plans will arise from the inclusion of wood storks among Lee County Listed Species, as provided in Policy 77.10.1. Policies 77.10.3 and 77.10.4 provide additional protection for wood storks found in Lee County.
As to Issue 12, the Settlement Amendments are consistent with and substantially similar to the provisions of Paragraph IX.D of the Settlement Agreement.
Paragraph IX.E of the Settlement Agreement provides: "Add a policy or policies regarding protection of the Florida panther and the black bear by specifically addressing, by June 30, 1991, the feasibility of creating wildlife corridors for this purpose."
Issue 13 asserts that the Amended Plan fails to contain a policy protecting the Florida panther and black bear by specifically addressing, by June 30, 1991, the feasibility of creating wildlife corridors for this purpose, as provided by Paragraph IX.E of the Settlement Agreement.
Conservation Objective 77.11 states: "FLORIDA PANTHER AND BLACK BEAR. By June 30, 1991, county staff shall develop measures to protect the Florida panther and black bear through greenbelt and acquisition strategies."
The policy cluster under Conservation Objective 77.11 provide:
<<Policy 77.11.1: County staff, working with the Florida Game and Freshwater Fish Commission, shall identify known black bear and Florida panther corridors in Lee County.>>
<<Policy 77.11.2: Criteria developed for ranking land acquisition priorities shall include known panther and black bear corridors.>>
<<Policy 77.11.3: Lee County shall inform Collier and Charlotte counties as to Lee County corridor acquisition projects to encourage a regional approach to corridor acquisition.>>
<<Policy 77.11.4: Lee County shall support the acquisition of the Flint Pen Strand through a millage increase of .2 mills over a three-
year period. Acquisition of this documented Florida panther and black bear corridor shall be coordinated with the South Florida Water Management District's "Save Our Rivers" program and the state's "Conservation and Recreational Lands" program.>>
<<Policy 77.11.5: Important black bear and Florida panther use areas shall be identified. Corridors for regulatory and public acquisition purposes shall be designated within these use areas. The corridor boundaries shall include wetlands, upland buffers, and nearby vegetative communities which are particularly beneficial to the Florida panther and black bear (such as high palmetto and oak hammocks).>>
<<Policy 77.11.6: Florida panther and black bear corridors shall be included in the Protected Species Ordinance (#89-34) management section. Where corridors are purchased (or designated for purchase) adjacent to the development site, then a buffer to the corridor of no greater than
500 feet shall be required.>>
<<Policy 77.11.7: In any vegetative restoration projects conducted by Lee County for land acquired due to its environmental sensitivity (such as the Six Mile Cypress Strand and the Flint Pen Strand), plant lists
shall include species that provide forage for the prey of the Florida panther and forage for the black bear.>>
Paragraph IX.E of the Settlement Agreement requires Lee County only to address the feasibility of creating wildlife corridors for the Florida panther and black bear, not actually establish corridors. Conservation Objective 77.11 and its policy cluster address the feasibility of creating wildlife corridors for the panthers and bears, and, through a variety of means, actually implement certain protective strategies. As to Issue 13, the Settlement Amendments are consistent with and substantially similar to the provisions of Paragraph IX.E of the Settlement Agreement.
CONCLUSIONS OF LAW
The Conclusions of Law concerning the claims of Ft. Myers are set forth in Appendix B.
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
These cases demand the interpretation and, to a limited extent, enforcement of the Settlement Agreement. The enforcement is limited to the choices presented by the parties to the Settlement Agreement, which are appropriately restricted to the type of case-management responsibilities typically borne by hearing officers. This interpretation of the hearing officer's responsibilities in these cases is consistent with the judicial guidance offered at the trial and appellate levels. To continue to refuse to acknowledge the Settlement Agreement would require Lee County to undergo additional expense in obtaining effective relief--a result even less appealing given the instant findings that Lee County has performed the necessary preconditions to the dismissal of the petitions of the Remaining Challengers.
Therefore, as agreed upon by the parties, if the Settlement Amendments and Revised Data and Analysis are not consistent with or substantially similar to the Proposed Actions, then the recommended order should address the merits of the claims of the Remaining Challengers under the Act.
But if the Settlement Amendments and Revised Data and Analysis are consistent with and substantially similar to the Proposed Actions, then the petitions of the Remaining Challenger should be dismissed.
Normally, intervenors in a Section 163.3184(10) proceeding may amend their petitions to address settlement amendments, even if DCA is satisfied by the settlement amendments. Although unnecessary, such intervenors, as did RGMC and COTI, may, out of an abundance of caution, commence a Section 163.3184(9) proceeding to challenge the settlement amendments. However, due to Lee County's compliance with the Settlement Agreement, the Remaining Challengers are precluded from pursuing either alternative, at least where, as here, Lee County limited the Settlement Amendments (with four exceptions not relevant to the above-styled cases) to the Proposed Actions described in the Settlement Agreement as preconditions to the voluntary dismissal of the petitions of the Remaining Challengers.
These cases are not about the adequacy of the Settlement Agreement. With respect to certain issues, the converse may be closer to the truth. Although Lee County did not perfectly track the Proposed Actions, and thus presented several meritorious factual disputes for resolution, the Remaining
Challengers have in several cases, in effect, attacked the Settlement Agreement under the guise of attacking the Settlement Amendments and Revised Data and Analysis.
For the reasons set forth above, Lee County has amended the Plan and revised the Data and Analysis in a manner consistent with and substantially similar to the Proposed Actions set forth in the Settlement Agreement. Accordingly, the petitions of the Remaining Challengers must now be dismissed.
RECOMMENDATION
Based on the foregoing, it is hereby
RECOMMENDED that the Administration Commission enter a final order dismissing the petitions of RGMC, COTI, Buhl, 1000 Friends, Boyd, and Ft. Myers in DOAH Case No. 89-1843GM and, exercising pendent jurisdiction, the petition of RGMC and COTI in DOAH Case No. 90-7792GM.
ENTERED January 7, 1993, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings January 7, 1993.
ENDNOTES
1/ Deletions from the Plan made by the Settlement Amendments are shown as stricken through and additions are shown as underlined. [replace by [[]] and
<<>> as noted within ACCESS document] Portions of the Amended Plan are shown in boldface. [replaced by "" within ACCESS document]
2/ The service/traffic formula does not operate in isolation. For example, the Amended Plan also requires developer-provided mitigation. However, the service/traffic formula requires little of the County in addressing the problem of backlogged roads before 2000.
A graph on p. VI-10 of Joint Exhibit 10.a provides the necessary data to calculate the service/traffic formula to determine if, under this formula, Lee County would likely be precluded from issuing final development orders due to the presence of backlogged roads. A sample calculation on p. VI-6 of Joint Exhibit 10.a illustrates the calculation.
As noted on the graph, the service/traffic formula is inapplicable to two of the island traffic districts, which contain only constrained roads. More importantly, the service/traffic formula almost precludes the possibility of concurrency-imposed limitations on development due to the backlogged roads in any of the six mainland districts. The reason is the vast difference--in each district--between existing service volume and traffic volume.
Under the service/traffic formula, as applied to the six mainland districts and assuming a straight-line extrapolation of the existing annual percentage increase in traffic volume, Lee County would not be required to build or commit to any road improvements for over 10 years in Districts 1, 2, 5, and 8, six years in District 4, and seven years in District 3. In other words, nothing in the service/traffic formula would prevent Lee County from continuing to issue final development orders impacting presently backlogged road segments and causing more road segments to become backlogged without addressing capacity improvements for at least six years anywhere on the mainland and over 10 years for most of the mainland.
COPIES FURNISHED:
David K. Coburn, Secretary
Florida Land and Water Adjudicatory Commission
311 Carlton Building Tallahassee, FL 32301
Linda Shelley, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Michael P. Donaldson Assistant General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Attorney Thomas W. Reese
123 Eighth Street North St. Petersburg, FL 33701
Richard Grosso Legal Director
1000 Friends of Florida
P.O. Box 5948
Tallahassee, FL 32314-5948
Kenneth G. Oertel Scott Shirley
Oertel, Hoffman, Fernandez & Cole, P.A.
P.O. Box 6507
Tallahassee, Fl 32314-6507
Ray Pavelka
Mariner Properties, Inc. Suite 350
12800 University Drive Ft. Myers, FL 33907-5343
Charles L. Siemon Siemon, Larsen & Purdy Mizner Park
433 Plaza Real, Suite 339 Boca Raton, FL 33432
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
APPENDIX A
NOTE: All proposed findings of all parties not specifically ruled upon below are rejected as unnecessary. Due to the dispositive nature of the Settlement Agreement, the majority of proposed findings of the parties are unnecessary because they are directed to issues arising under the growth management law.
Treatment Accorded Proposed Findings of RGMC, COTI, and Buhl Adopted or adopted in substance: 1; 6-7; 14; 17-19 (first three
sentences); 30 (except first sentence); 32 (second and third sentences); 35-
36; 38; 42; 44 (first sentence); 46- 47; 50; 51 (first sentence); 52; 53 (first and second sentences); 55 (third sentence; although not all such areas are exempted); 56; and 58-59 (although Objective 77.11 is not the only responsive provision of the Amended Plan).
Rejected as unsupported by the appropriate weight of the evidence: 2; 16;
19 (fourth and fifth sentences); 20-21; 29; 32 (first and fourth sentences); 33-34; 36 (as to causal relationship); 44 (except first sentence); 44A; 51 (except first sentence); 53 (third sentence)-54 (first sentence); 55 (third sentence); 57; and 60.
Rejected as irrelevant: 3 (the result is the same even if the burden of proof were on Lee County to show compliance with the Settlement Agreement); 4 (the result is the same regardless of the standard of proof employed); 5; 8-9; 22; 32 (fifth sentence); 45; and 48.
Rejected as legal argument: 10-13; 15; 23-28; 30 (first sentence); 31;
43; and 49.
Rejected as subordinate: 39-41 and 54 (second sentence)-55 (first sentence).
Treatment Accorded Proposed Findings of 1000 Friends and Boyd Adopted or adopted in substance: 84 (first sentence).
Rejected as speculation: 84 (second sentence).
Rejected as unsupported by the appropriate weight of the evidence: 85-86. Treatment Accorded Proposed Findings of Lee County
Adopted or adopted in substance: 7-8; 13-21 (first sentence); 28-33 (first sentence); 49-50; 53-56; 58-67 (second sentence); and 70-73.
Rejected as subordinate: 9-12; 25-27; 33 (second through fourth
sentences)-48; 51-52; 57; and 67 (third sentence)-69.
Rejected as unsupported by the appropriate weight of the evidence: 21 (second and third sentences); and 22 (not if the maximum densities are applied only to vacant acreage to determine the density allocation ratio--not to determine the adequacy of public facilities planning, which was the original purpose of the Roberts map).
Rejected as irrelevant: 23-24.
Treatment Accorded Proposed Findings of DCA
Adopted or adopted in substance: 9 (first sentence) and 10-12. Rejected as subordinate: 8.
Rejected as speculation: 9 (second sentence).
APPENDIX B **
** NOTE: APPENDIX B IS THE RECOMMENDED ORDER ISSUED 04/06/90.
IT IS THE FIRST RECOMMENDED ORDER IN THIS ACCESS PROGRAM AND IS THEREFORE NOT DUPLICATED AT THE END OF THIS 01/07/93 RECOMMENDED ORDER.
| Issue Date | Proceedings |
|---|---|
| Feb. 17, 1994 | Final Order filed. |
| Feb. 09, 1994 | 1000 Friends of Florida and Eugene Boyd's Notice of Voluntary Dismissal filed. |
| Sep. 10, 1993 | (1000 Friends of Florida) Notice of Change of Address filed. |
| Jan. 07, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 5/4-7/92 & 6/2/92. |
| Jan. 07, 1993 | Due to the closing of the lowest consolidated case number, all future pleadings will be docketed and filed in the next to the lowest consolidate DOAH Case No. 90-7791GM |
| Dec. 22, 1992 | (Exhibit) CC Large Color of Portions of Lee County Comprehensive Plan's Future Land Use Map filed. |
| Dec. 03, 1992 | Lee County's Objections to Proposed Recommended Order of RGMC, COTI, BUHL and SHERIDAN filed. |
| Nov. 25, 1992 | Notice of Supplemental Authority filed. (From Kenneth G. Oertel) |
| Nov. 12, 1992 | The RGMC, COTI, Buhl and Sheridan's Proposed Recommended Order filed. |
| Nov. 10, 1992 | Proposed Recommended Order of 1000 Friends of Florida And Eugene Boyd filed. |
| Nov. 09, 1992 | Proposed Recommended Order of Lee County w/Exhibit-A filed. |
| Nov. 09, 1992 | Department of Community Affairs' Proposed Findings of Fact, Conclusions of Law and Recommended Order filed. |
| Oct. 30, 1992 | Notice of Substitution and Appearance of Counsel For Lee County filed. (From Timothy Jones) |
| Oct. 26, 1992 | CC Memorandum to Counsel of Record from Scott Shirley (re: Extension for filing PRO) filed. |
| Oct. 19, 1992 | Letter to Counsel of Record from Scott Shirley (re: time for filing PROs) filed. |
| Oct. 07, 1992 | (Respondent) Motion for Extension of Time filed. |
| Sep. 17, 1992 | cc: Memorandum to Counsel of Record from S. Shirley (re: Filing of PRO's) filed. |
| Sep. 16, 1992 | CC Memorandum to Counsel of Record from Scott Shirley (re: Motion for Extension of Time for filing PRO has been granted) filed. |
| Sep. 08, 1992 | (Coalition, COTI, Buhl & Sheridan) Motion for Extension of Time to Serve Proposed Recommended Order filed. |
| Jul. 29, 1992 | Order sent out. (motion for extension of time granted) |
| Jul. 27, 1992 | Motion for Extension of Time to Serve Proposed Recommended Order filed. (From Thomas W. Reese) |
| Jul. 10, 1992 | (1000 Friends) Exhibits filed. |
| Jun. 25, 1992 | Transcript filed. |
| Jun. 25, 1992 | Transcript (Vols 1-8) filed. |
| Jun. 04, 1992 | Lee Exhibit-93, Joint Exhibit-4&13 filed. (From Scott Shirley) |
| Jun. 04, 1992 | (COTI) Exhibits filed. |
| Jun. 01, 1992 | FGFWFC'S Vegetative Cover Map of Lee Count (COTI's Exhibit-25) w/cover ltr & attachment filed. |
| Jun. 01, 1992 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| May 26, 1992 | Floppy (computer) Disk w/cover ltr filed. (From Bill Spikowski) |
| May 05, 1992 | 89-1843GM, 90-7791GM & 90-7792GM are consolidated per HO instructions. |
| May 01, 1992 | (Lee County) Addendum to Prehearing Stipulation filed. |
| Apr. 30, 1992 | (Joint) Prehearing Stipulation filed. |
| Apr. 28, 1992 | Order On Motion For Reconsideration And Motion To Determine Issue sent out. |
| Apr. 24, 1992 | (Respondent) Motion to Determine Issues filed. |
| Apr. 22, 1992 | Resonsible Growth Management Coalition, Inc. the Committee of the Island, Inc. and Brenda Sheridan's Motion for Reconsideration of Order and Motion to Amend; Notice of Service of Interrogs. Answers filed. |
| Apr. 20, 1992 | (Responsible Growth Mgmt Coalition) Reply to Lee County's Objections to Motions for Leave to File Amended Petition filed. |
| Apr. 20, 1992 | (Respondent) Notice of Service of Responses to Sheridan's First Set of Interrogatories to Lee County And Request for Production of Documents filed. |
| Apr. 16, 1992 | Order On Motions To Amend And Status Of Parties sent out. (motion to amend filed by 1000 Friends and Boyd is granted) |
| Apr. 13, 1992 | (Respondent) Response to Motion to Amend Petitions of The Responsible Growth Management Coalition, Inc. and The Committe of the Island, Inc.; Response to Motion to Amend Petition-in-Intervention of The Responsible Growth Management Coalition, Inc., the |
| Apr. 09, 1992 | Notice of Service of Interrogatory Answers filed. (From Thomas W. Reese) |
| Apr. 08, 1992 | (Respondent) Notice of Taking Deposition filed. |
| Apr. 08, 1992 | Motion for Leave to File Amended Response to Order to Show Cause and Request for Formal Administrative Hearing filed. (From Richard Gross) |
| Apr. 07, 1992 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Apr. 02, 1992 | Notice of Voluntary Dismissal by James Hayes filed. |
| Apr. 02, 1992 | (Responsible Growth Mgmt Coalition) Motion for Leave to File Amended Petition-In-Intervention; Amended Petition for Hearing (for 90-7792GM) filed. |
| Apr. 02, 1992 | (Respondent) Notice of Taking Deposition filed. |
| Apr. 01, 1992 | Motion for Leave to Intervene as Petitioners-In-Intervention by the Responsible Growth Management Coalition, Inc. and Donna Buhl filed. |
| Apr. 01, 1992 | (Responsible Growth Mgmt Coalition) Motion for Leave to File Amended Petition-In-Intervention filed. |
| Mar. 26, 1992 | Fort Myers' Response to March 11, 1992 Order filed. |
| Mar. 24, 1992 | Amended Notice of Hearing sent out. (hearing set for May 4-9, 1992; 10:00am; Fort Myers) |
| Mar. 24, 1992 | Notice of Taking Deposition filed. (From Kenneth G. Oertel) |
| Mar. 13, 1992 | Letter to REM from G. Hagen (Re: Confirmation of Hearing Arrangements) filed. |
| Mar. 11, 1992 | Order on Joint Motion for Reconsideration and Motion for Continuance sent out. (hearing reset for May 4-8, 1992; 9:00am; Lee County) |
| Mar. 06, 1992 | (Lee County) Notice of Telephonic Prehearing Conference filed. |
| Mar. 05, 1992 | (Respondent) Motion for Continuance filed. |
| Feb. 27, 1992 | Notice of Service of Interrogatories and Request for Production of Documents filed. (From Thomas W. Reese) |
| Feb. 20, 1992 | Joint Motion for Reconsideration and Prehearing Conference filed. |
| Dec. 24, 1991 | Letter to REM from Gregory S. Hagen (re: locaation of hearing) filed. |
| Dec. 13, 1991 | Order Denying Motion to Reconsolidate Cases sent out. |
| Dec. 13, 1991 | Notice of Hearing sent out. (hearing set for April 6-17, 1992; 10:00am; Ft Myers). |
| Nov. 27, 1991 | Mandate filed. |
| Oct. 30, 1991 | Motion to Reconsolidate Cases and Jointly Set Cases For Final Hearing filed. (From Thomas Reese) |
| Oct. 24, 1991 | First DCA's Opinion (on review of nonfinal administrative action) filed. |
| Jul. 12, 1991 | Notice of Substitution and Appearance of Counsel For Lee County filed. (from Gregory S. Hagen) |
| Jul. 09, 1991 | Notice of Appearance filed. |
| Jul. 01, 1991 | Ltr. to 1st DCA from S. Shirley enclosing corrected exhibits filed. |
| Jul. 01, 1991 | Lee County's response to motion to clarify oral argument notice and motion to correct the style of this appeal filed. |
| Jun. 26, 1991 | Lee County's Reply to Motion for Clarification and/or Rehearing of Order on Joint Motion to Stay Hearing Below for for a Partial Vacation of Stay filed. |
| Jun. 24, 1991 | Response to Motion to Correct Style of Appeal filed. |
| Jun. 21, 1991 | Response to Motion to Correct Style of Appeal filed. |
| Jun. 20, 1991 | lst DCA Docketing Statement filed. |
| Jun. 19, 1991 | Motion for Clarification and/or Rehearing of Order on Joint Motion to Stay Hearing Below or for Partial Vacation of Stay; (DCA filed) Motion to Expedite filed. |
| Jun. 19, 1991 | Notice of Cancellation of Hearings sent out. (cases stayed). |
| Jun. 18, 1991 | Notice of Cancellation of Deposition Duces Tecum filed. (from Kenneth G. Oertel) |
| Jun. 17, 1991 | Lee County's Responses and Objections to Zemel's Second Request for Admissions to Lee County filed. (from Kenneth G. Oertel) |
| Jun. 13, 1991 | 1st DCA Order (granting stay) filed. |
| Jun. 12, 1991 | Order on Motion for Continuance sent out. (89-1843GM & 90-7793GM are abated & severed from 90-7791GM & 90-7793GM) |
| Jun. 12, 1991 | Notice of Appearance of Counsel For Department of Community Affairs filed. (From Michael P. Donaldson) |
| Jun. 11, 1991 | Notice of Service of Responses to Interrogatories filed. (From Kenneth G. Oertel) |
| Jun. 10, 1991 | (Lee County) Response to Zemel`s Second Request for Production of Documents to Lee County; Lee County`s Notice of Taking Deposition Duces Tecum filed. (From Kenneth G. Oertel) |
| Jun. 06, 1991 | Amended Notice of Telephonic Hearing filed. (From Ken G. Oertel) |
| Jun. 05, 1991 | (Respondent) Motion for Continuance; Notice of Telephonic Hearing filed. (From Ken G. Oertel) |
| Jun. 04, 1991 | Joint Motion to Stay Hearing Below w/Exhibits A&B filed. (From Michael Donaldson & Kenneth G. Oertel) |
| May 28, 1991 | Petitioner Zemels, Et Al., Notice of Taking Deposition Duces Tecum filed. |
| May 13, 1991 | Order Denying Continuance sent out. |
| May 13, 1991 | Zemel's Second Request for Admissions to Lee County filed. (From Elizabeth C. Bowman) |
| May 10, 1991 | (Lee County) Motion for Continuance filed. |
| May 07, 1991 | Zemel's Second Request For Production of Documents by Lee County; Certificate of Service of Zemel's Second Set of Interrogatories to Lee County; Notice of Service filed. (From David Powell) |
| May 01, 1991 | Notice of Change of Address filed. (From Laura E. Peck) |
| Apr. 30, 1991 | Petitioner Zemel`s, Et Al., Amended Notice of Taking Deposition Duces Tecum filed. (From David L. Powell) |
| Apr. 30, 1991 | Petitioner Zemel's, Et Al., Notice of Taking Deposition Duces Tecum filed. (from David L. Powell) |
| Apr. 29, 1991 | Notice of Change of Address filed. (from Margaret D. Nattoli) |
| Apr. 25, 1991 | Petitioner`s Reply to Responses filed. |
| Apr. 18, 1991 | Notice of Supplemental Authority w/attachement(from Kenneth G. Oertel) filed. |
| Apr. 12, 1991 | Lee County's Notice of Service of Answers to Interrogatories filed. (from Scott Shirley) |
| Apr. 10, 1991 | Response of the Responsible Growth Management Coalition, Inc., The Committee of the Islands, Inc. and Donna Buhl to March 20, 1991 Order to Show Cause filed. |
| Apr. 10, 1991 | Notice of Apearance filed. |
| Apr. 10, 1991 | Appellee, Lee County`s, Response to Order to Show Cause filed. |
| Mar. 27, 1991 | Letter to G. Adams from J. York (& att'd DCA Order dated 3/20/91) sent out. |
| Mar. 26, 1991 | DCA Case No#1-91-679. filed. |
| Mar. 26, 1991 | Order (DCA Order to show cause within 20 days); Letter to SLS from K. Brodeen filed. |
| Mar. 25, 1991 | Petitioners Zemel Et Al. Notice of Continuation of Deposition Duces Tecum filed. |
| Mar. 14, 1991 | Order Granting Request for Productive Order and Denying Request for Abatement sent out. |
| Mar. 11, 1991 | Certificate of Petition for Review of Non-Final Administrative Action Sent Out. |
| Mar. 08, 1991 | Petitioner`s Request for Oral Argument filed. |
| Mar. 07, 1991 | Petitioner Zemel, Et Al.,`s Response Opposing Lee Countys Motion for Protective Order filed. |
| Mar. 06, 1991 | Order Denying Department of Community Affairs Motion For Reconsideration sent out. |
| Mar. 06, 1991 | (Respondents) Motion for Protective Order and for Order Abating Discovery filed. |
| Mar. 01, 1991 | (Respondent) Lee Countys Response to DCA Motion for Reconsideration filed. |
| Feb. 26, 1991 | Letter to S. Shirley from D. Powell (Re: Interrogatories) filed. |
| Feb. 26, 1991 | (Respondent) Department of Community Affairs Motion for Reconsideration filed. |
| Feb. 26, 1991 | (Petitioner) Notice of Continuing Deposition Duces Tecum filed. |
| Feb. 20, 1991 | (Sylvan Zemel) Notice of Taking Deposition Duces Tecum; Notice of Rescheduling Depositions Duces Tecum filed. |
| Feb. 19, 1991 | Order Resetting Prehearing Schedule and Denying Motion to Reconsider Order sent out. (hearing reset for 7/8/91) |
| Feb. 18, 1991 | (Sylvan Zemel) Notice of Rescheduling Deposition filed. |
| Feb. 18, 1991 | Petitioner Zemel's Motion to Reconsider Order Resetting Hearing and/or Motion to Sever (and Att) filed. |
| Feb. 18, 1991 | Petitioners Zempel, ET AL.'s Response to Lee County's Motion for Protective Order filed. |
| Feb. 15, 1991 | (Lee County) Motion For Protective Order; Motion to Reset Prehearing Schedule filed. (From Kenneth G. Oertel) |
| Feb. 15, 1991 | Notice of Cancellation of Depositions filed. |
| Feb. 14, 1991 | Order Resetting Hearing sent out. (hearing reset for July 8-19, 1991: 9:00am: Location to be designated at a later date) |
| Feb. 13, 1991 | (Respondent) Objections to Interrogatories; Response to Requests For Admissions; Notice of Service of Responses to Interrogatories; Response to Request For Production of Documents filed. (From Ken G. Oertel) |
| Feb. 13, 1991 | Letter to REM from Ken G. Oertel (re: filing suit for Declaratory Judgment and Injunctive Relief) filed. |
| Feb. 13, 1991 | Lee County`s First Notice of Taking Deposition Duces Tecum; Lee County`s Second Notice of Taking Deposition Duces Tecum; Lee County`s Third Notice of Taking Deposition Duces Tecum filed. (From Ken G. Oertel) |
| Feb. 12, 1991 | Petitioners Zemel et al. Notice of Taking Deposition Duces Tecum filed. |
| Feb. 11, 1991 | Amended Notice of Hearing sent out. (hearing set for March 11-22, 1991: Fort Myers) |
| Feb. 08, 1991 | Notice of Service of Answers to Zemel`s First Set of Interrogatories; Department of Community Affairs` Answers to Zemel`s First Set of Interrogatories w/(DCA) Attachments filed. (From Karen Brodeen) |
| Feb. 07, 1991 | Department of Community Affairs` Response to Request For Admissions filed. (from Karen Brodeen) |
| Feb. 06, 1991 | Petitioners' Zemel Et Al. Notice of Taking Deposition Duces Tecum filed. (From Elizabeth C. Bowman) |
| Feb. 05, 1991 | Order On Scope of Hearing and Standards of Proof sent out. |
| Feb. 05, 1991 | Order Granting Oral Request for Clarification of Previous Order Granting Motion for Clarification sent out. |
| Feb. 04, 1991 | (Petitioner) Response to Request to Produce filed. (From Karen Brodeen) |
| Feb. 04, 1991 | (Respondent) in Opposition to Motion to Determine Standard of Proof filed. (From Kenneth G. Oertel) |
| Feb. 01, 1991 | Responsible Growth Management Coalition, Inc`s Amended Motion-in-Limine filed. (From Thomas W. Reese) |
| Jan. 31, 1991 | (Respondent) Notice of Answering Interrogatories; Objections to Interrogatories and Response to Request For Production of Documents filed. (From Kenneth G. Oertel) |
| Jan. 31, 1991 | Notice of Hearing filed. (From Thomas W. Reese) |
| Jan. 30, 1991 | Notice of Telephonic Hearing filed. (From Kenneth G. Oertel) |
| Jan. 29, 1991 | (Lee County) Motion in Limine; Motion to Strike RGMC and Coti's Notices of Objections to Plan Amendment Required by Settlement Agreement and Requests For Hearing filed. (From Ken G. Oertel) |
| Jan. 28, 1991 | (Petitioner) Response to Request to Produce filed. (From Karen Brodeen) |
| Jan. 28, 1991 | (Lee County) Notice of Service of Interrogatories filed. (From Kenneth G. Oertel) |
| Jan. 25, 1991 | Respondent, Lee County`s Motion to Strike or Clarify Responsible Growth Management Coalition, Inc`s and Committee of The Islands Inc`s Petitions For Hearing; Notice of Service of Interrogatories filed. (From Ken G. Oertel) |
| Jan. 24, 1991 | Notice of Service of Answers to Interrogatories to Responsible Growth Management Coalition, Inc`s And Brenda Sheridan; Department of Community Affairs` Answers to Interrogatories of Responsible Growth Management Coalition, Inc. an d Brenda Sheridan filed. |
| Jan. 24, 1991 | Respondent, Lee County's Request For Production of Documents to Committee of The Islands, Inc.; Respondent, Lee County's Request for Production of Documents to Brenda Sheridan filed. (From Ken G. Oertel) |
| Jan. 24, 1991 | Amended Notice of Withdrawal as Counsel; Respondent, Lee County's Amended Motion to Dismiss or Strike Brenda Sheridan's Petition For Hearing; Respondent, Lee County's, Request For Production of Documents to Responsible Growth Management Coalition, Inc. re |
| Jan. 24, 1991 | (Respondent) Correction to Interrogatories (3) filed. (from Scott Shirley) |
| Jan. 24, 1991 | Responsible Growth Management Coalition, Inc`s Motion in Limine To Exclude Stipulated Settlement Agreement From the Final Hearing, Or In The Alternative, Motion to Rescind Stipulated Settlement Agreement w/exhibit-A filed. (From Thomas W. Reese) |
| Jan. 24, 1991 | Responsible Growth Management Coalition, Inc`s Motion to Determine Standard of Proof For Parties at the Final Hearing & attachment filed. (From Thomas W. Reese) |
| Jan. 23, 1991 | Order Granting Wiss's Motion for Clarification sent out. |
| Jan. 22, 1991 | (Lee County) Notice of Service of Interrogatories filed. |
| Jan. 18, 1991 | Petitioner Wiss's Motion For Clarification filed. (From David L. Powell) |
| Jan. 18, 1991 | Notice of Service of Interrogatories filed. (From Scott Shirley) |
| Jan. 16, 1991 | Notice of Withdrawal As Counsel filed. (From Ken G. Oertel) |
| Jan. 16, 1991 | Notice of Service filed. (from Russell P. Schropp) |
| Jan. 14, 1991 | (Lee County) Notice of Appearance filed. (From Ken G. Oertel) |
| Jan. 14, 1991 | Notice of Service filed. (From David L. Powell) |
| Jan. 14, 1991 | Order Granting Motion to Correct Order sent out. (Petitions of Responsible Growth Management Coalition, Inc. and Donna Buhl are not dismissed) |
| Dec. 31, 1990 | (Responsible Growth Mgmt, Inc & B. Sheridan) Notice of Service of Interrogatories filed. |
| Dec. 31, 1990 | (Responsible Growth Mgmt Coal. & D. Buhl) Motion to Correct Order Dismissing Petitioners of Intervenors filed. |
| Dec. 20, 1990 | Order Dismissing Petitions of Intervenors (Petitions of the following intervenors are dismissed: James Hayes, Responsible Growth Mng. Coalition, Donna Buhl, Southwest Florida Regional Planning Council, Economic Development Coalition of Lee County, Inc. th |
| Dec. 19, 1990 | Order of Consolidation sent out. (89-1843, 90-7791, 90-7792 & 90-7793 consolidated) |
| Dec. 07, 1990 | Notice of Appearance and Substitution of Counsel filed. (From R. W. Gray) |
| Dec. 06, 1990 | Notice of Appearance and Substitution of Counsel; Response to Order to Show Cause filed. (From R. W. Gray) |
| Nov. 19, 1990 | Coti's Notice of Objections to Plan Amendment Required by Settlement Agreement and Request For Hearing W/exhibit-A filed. (From (From Thomas W. Reese) |
| Nov. 16, 1990 | (Intervenors) Response to Order to Show Cause filed. (From K. G. Oertel) |
| Nov. 16, 1990 | (Respondent) Motion For Extension of Time to Respond to Order to Show Cause; Notice in Response to Order to Show Cause; Response to Order to Show Cause and Request For Formal Administrative Hearing filed. (From Richard Grossco) |
| Nov. 16, 1990 | Coti's Notice of Objections to Plan Amendment Required by Settlement Agreement and Request For Hearing filed. (From Thomas W. Reese) |
| Nov. 16, 1990 | Fort Myers' Response to Order to Show Cause filed. (From Andrew C. Stansell) |
| Nov. 06, 1990 | Notice of Hearing sent out. (hearing set for March 11-22, 1991: 10:00am: Lee County) |
| Nov. 06, 1990 | Order to Show Cause sent out. |
| Nov. 06, 1990 | Notice of Hearing sent out. (hearing set for March 11-12, 1990: 10:00am: Lee County) |
| Sep. 28, 1990 | Notice of Objections to Plan Amendment Required by Settlement Agreement and Motion to Set Case for Hearing (+ exh A) filed. |
| Jul. 06, 1990 | Order of Remand filed. |
| Jul. 06, 1990 | Order of Remand (+ att's) filed. |
| Apr. 06, 1990 | Recommended Order sent out. CASE CLOSED. Hearing held 10/9-10/89. |
| Mar. 08, 1990 | Joint Stipulation on Post-Hearing Submissions filed. |
| Mar. 07, 1990 | Joint Stipulation on Post-Hearing Submissions; & cover letter from G. Hagen filed. |
| Feb. 20, 1990 | Letter to SLS from L. W. Smith (re: Status of Case) filed. |
| Feb. 14, 1990 | Respondent Lee County`s Proposed Finds of Fact and Conclusions of Law filed. |
| Feb. 13, 1990 | (Intervenor) Notice of Filing filed. |
| Feb. 12, 1990 | (Intervenors) Notice of Appearance and Substitution of Counsel filed. |
| Feb. 12, 1990 | (Intervenors) Proposed Recommended Order filed. |
| Feb. 02, 1990 | Transcript of Proceedings (10/9/89; 10:00am); Transcript of Proceedings (10/10/89; 1:00pm) filed. |
| Dec. 14, 1989 | Supplemental Notice of Compliance With Order to Exchange Exhibits That Will be Offered at Hearing With All Parties to This Matter w/Exhibit-A filed. |
| Oct. 27, 1989 | Order Publishing Ex Parte Communications sent out. |
| Oct. 17, 1989 | Letter to REM from H. N. Hume (re: Ronald Wiss, As Trustee does not Object to the Hearing being abated) filed. |
| Oct. 16, 1989 | Notice of Filing Stipulated Settlement Agreement, Joint Motion for Partial Abatement of Proceedings and Joint Motion for Severance of Intervenor Proceedings w/attached Stipulated Settlement Agreement filed. |
| Oct. 06, 1989 | CC Letter to H. Hume, W. Powell & D. Emerson Bruner from M. J. Ciccarone (re: Proposed Unilateral Prehearing Stipulation) No Attachment filed. |
| Oct. 05, 1989 | Notice of Service of Answers of Interrogatories filed. |
| Oct. 05, 1989 | Letter to REM from A. C. Stansell (re: Rescheduling Hearing) filed. |
| Oct. 04, 1989 | Amended Petition to Intervene by The Southwest Florida Regional Planning Council filed. |
| Oct. 04, 1989 | Letter to D. J. Russ from M. J. Ciccarone (re: Proceedings Commencing Monday October 9. 1989) filed. |
| Oct. 03, 1989 | Department`s Response to Cape Coral`s Motion to Consolidate Issues filed. |
| Oct. 02, 1989 | Intervenor Fort Myers` Motion in Limine and Supporting Memorandum & cover Letter filed. |
| Oct. 02, 1989 | Petition to Intervene by The Southwest Florida Regional Planning Council filed. |
| Oct. 02, 1989 | Notice of Appearance of Co-Counsel filed. |
| Oct. 02, 1989 | Intervenor Fort Myers Unilateral Proposed Stipulation filed. |
| Oct. 02, 1989 | Respondent`s, Lee County`s Unilateral Prehearing Stipulation filed. |
| Oct. 02, 1989 | Motion to Dismiss Cape Coral's Petition to Intervene filed. |
| Sep. 29, 1989 | Proposed Unilateral Prehearing Stipulation of the Department of Community Affairs, 1000 Friends of Florida and Eugene Boyd, the Responsible Growth Management Coalition and Donna Buhl the Committee of the Islands and James Hayes, and Mariner Group, Inc., M |
| Sep. 29, 1989 | Amended Petition to Intervene by the Southwest Florida Regional Planning Council filed. |
| Sep. 29, 1989 | Economic Development Coalition of Lee County, Inc., Intervenor's, Prehearing Stipulation w/exhibit-A filed. |
| Sep. 29, 1989 | Order On Intervention sent out. (Ronald Wiss and Southwest Fl. Regional Planning Council's Petitions to Intervene are denied) |
| Sep. 29, 1989 | Motion to Dismiss Ronald Wiss's Petition to Intervene filed. |
| Sep. 29, 1989 | Respondent`s Lee County`s Response to Intervenors, Marine Group, Inc, Mariner Properties, Inc and South Seas Plantation`s lst Request for Admissions filed. |
| Sep. 29, 1989 | Motion for Order of Consolidation of Issues (89-1843GM; 89-2030GM & 89-2159GM) |
| Sep. 28, 1989 | Order on Discovery and Intervention sent out. (For City of Cape Coral) |
| Sep. 28, 1989 | Amended Notice of Taking Deposition DT filed. |
| Sep. 28, 1989 | Notice of Service of Answers to Interrogatories filed. |
| Sep. 27, 1989 | Petition to Intervene by the Southwest Florida Regional Planning Council filed. |
| Sep. 27, 1989 | Petition of Ronald Wiss, as Trustee for Leave to Intervene & cover Letter filed. |
| Sep. 25, 1989 | Notice of Service of Answer to Interrogatories filed. |
| Sep. 25, 1989 | Petition for Leave to Intervene filed. |
| Sep. 25, 1989 | Notice of Service of Answers to Interrogatories filed. |
| Sep. 25, 1989 | Copy of Lee County Ordinance No. 89-02 w/The Lee Plans (5 Binders) filed. |
| Sep. 22, 1989 | Letter to Counsel from T. W. Reese (re: Order dated April 14, 1989) filed. |
| Sep. 21, 1989 | Order on Schedule of Proceedings sent out. |
| Sep. 20, 1989 | Mariner Group, Mariner Properties, Inc. and South Seas Plantation's Notice of Exhibit Exchange filed. |
| Sep. 20, 1989 | Notice of Compliance With Order to Exchange Exhibits That Will be Offered at Hearing Withe All Parties to This Matter filed. |
| Sep. 19, 1989 | Amended Notice of Taking Deposition Duces Tecum filed. |
| Sep. 19, 1989 | Notice of Service of Answers of Interrogatories filed. |
| Sep. 18, 1989 | Notice of Rescheduling Depositions filed. |
| Sep. 14, 1989 | Supb DT filed. (4) |
| Sep. 13, 1989 | Letter to DOAH from D. Whitman; Affidavit of Service; Supb DT (9) filed. |
| Sep. 13, 1989 | Stipulated Joint Motion and Order for Continuance of Discovery & cover Letter filed. |
| Sep. 13, 1989 | Notice of Taking Deposition Duces Tecum filed. |
| Sep. 09, 1989 | Economic Development Coalition of Lee County, Inc., Intervenor`s Notice of Exhibit Exchange w/Exhibits 1-6 filed. |
| Sep. 08, 1989 | Notice of Taking Deposition Duces Tecum filed. |
| Sep. 08, 1989 | Subpoena Duces Tecum & cover Letter filed. |
| Sep. 07, 1989 | Notice of Taking Deposition Duces Tecum (3) filed. |
| Sep. 07, 1989 | Amended Notice of Taking Deposition Duces Tecum filed. |
| Sep. 06, 1989 | Response to Motion to Establish Schedule of Proceedings filed. |
| Sep. 06, 1989 | Motion to Establish Schedule of Proceedings (not signed) & cover Letter filed. |
| Sep. 05, 1989 | Notice of Taking Deposition Duces Tecum filed. |
| Aug. 31, 1989 | Notice of Service of Interrogatories w/attached Lee County`s Supplemental Interrogatories to City of Fort Myers, Florida filed. |
| Aug. 31, 1989 | Notice of Service of Answers to First Set of Interrogatories of The Department of Community Affairs filed. |
| Aug. 31, 1989 | Respondent's Request for Admissions from Intervenor, City of Fort Myers filed. |
| Aug. 30, 1989 | Intervenors, Mariner Group, Inc., Mariner Properties, Inc. and South Seas Plantation's First Request for Admissions to Lee County, Florida w/Exhibits 1-5 filed. |
| Aug. 30, 1989 | Intervenors, Mariner Group, Inc., Mariner Properties, Inc. and South Seas Plantation's First Request for Admissions to the Department of Community Affairs w/Exhibits 1-5 filed. |
| Aug. 25, 1989 | Notice of Service of Answers to Interrogatories filed. |
| Aug. 23, 1989 | Notice of Service of Interrogatories (4) filed. |
| Aug. 23, 1989 | Economic Development Coalition of Lee County, Inc., Intervenor`s Amended First Set of Interrogatories to the Department of Community Affairs filed. |
| Aug. 21, 1989 | Notice of Taking Deposition Duces Tecum filed. |
| Aug. 21, 1989 | Notice of Taking Deposition Duces Tecum filed. (from A. Anderson). |
| Aug. 18, 1989 | Department of Community Affairs` Second Set of Interrogatories to Lee County filed. |
| Aug. 18, 1989 | Notice of Service of Interrogatories filed. |
| Aug. 17, 1989 | Notice of Service of First Set of Interrogatories filed. |
| Aug. 17, 1989 | Letter to Mr. Russ & Ms. Glasco from K. G. Oertel filed. |
| Aug. 17, 1989 | Response of 1000 Friends of Florida and Eugene Boyd to Request for Production of Documents filed. |
| Aug. 16, 1989 | Response of 1000 Friends of Florida and Eugene Boud to Request for Production of Documents filed. |
| Aug. 11, 1989 | Notice of Service of Interrogs. filed. |
| Aug. 08, 1989 | Amended Notice of Hearing sent out. (hearing set for Oct. 4-6, 9-13 & 16-20, 1989; 10:00am; Ft. Myers) |
| Aug. 03, 1989 | Order (not Signed) & cover Letter filed. |
| Aug. 02, 1989 | Notice of Service of Interrogatories (6) filed. |
| Aug. 02, 1989 | Letter to M. Machlan from E. C. Bowman filed. |
| Jul. 31, 1989 | Response to Petition for Leave to Intervene filed. |
| Jul. 28, 1989 | Department of Community Affairs' First Set of Interrogatories to Mariner Properties, Inc. filed. |
| Jul. 28, 1989 | Department of Community Affairs` First Set of Interrogatories to South Seas Plantation filed. |
| Jul. 26, 1989 | Department of Community Affairs` First Set of Interrogatories to Economic Development Coalition filed. |
| Jul. 24, 1989 | Department of Community Affairs' First Set of Interrogatories to Lee County filed. |
| Jul. 21, 1989 | CC Letter to E. M. Woodford from E. H. Boyd filed. |
| Jul. 18, 1989 | Notice of Service of Economic Development Coalition of Lee County, Inc., Intervenor's first Set of Interrogatories to the Committee of the Islands and James Hayes filed. |
| Jul. 18, 1989 | Economic Development Coalition of Lee County, Inc., Intervenor`s First Request for Production of Documents to the Committee of the Islands and James Hayes filed. |
| Jul. 18, 1989 | Notice of Service of Economic Development Coalition of Lee County, Inc., Intervenor`s First Set of Interrogatories to the Responsible Growth Management Coalition, Inc. and Donna Buhl filed. |
| Jul. 18, 1989 | Economic Development Coalition of Lee County, Inc., Intervenor's, First Request for Production of Documents to the Audubon Society of Southwest Florida and Mary Machlan filed. |
| Jul. 18, 1989 | Economic Development Coalition of Lee County, Inc., Intervenor's First Request for Production of Documents to the Responsible Growth Management Coalition, Inc., and Donna Buhl filed. |
| Jul. 18, 1989 | Economic Development Coalition of Lee County, Inc., Intervenor's Amended First Request for Production of Documents to the Department of Community Affairs filed. |
| Jul. 18, 1989 | Amended Notice of Service of Economic Development Coalition of Lee County, Inc., Intervenor`s First Set of Interrogatories to the Department of Community Affairs filed. |
| Jul. 18, 1989 | Notice of Service of Economic Development Coalition of Lee County, Inc., Intervenor`s First Set of Interrogatories to 1000 Friends of Florida and Eugene Boyd filed. |
| Jul. 18, 1989 | Notice of Service of Economic Development Coalition of Lee County, Inc., Intervenor's First Set of Interrogatories to 1000 Friends of Florida and Eugene Boyd filed. |
| Jul. 18, 1989 | Notice of Service of Economic Development Coalition of Lee County, Inc., Intervenor`s First Set of Interrogatories to the Audubon Society of Southwest Florida and Mary Machlan filed. |
| Jul. 17, 1989 | Letter to REM from M. Machlan filed. |
| Jul. 17, 1989 | (Petitioner) Notice to Withdraw Petition to Intervene Filed by Audubon Society of Southwest Florida filed. |
| Jul. 14, 1989 | Notice of Service of Economic Development Coalition of Lee County, Inc., Intervenor`s First Set of Interrogatories to the Department of Community Affairs filed. |
| Jul. 14, 1989 | Economic Development Coalition of Lee County, Inc. Intervenor`s First Request for Production of Documents to the Department of Community Affairs filed. |
| Jul. 11, 1989 | Petition for Leave to Intervene filed. |
| Jul. 07, 1989 | Response in Opposition to Motion to Strike of Lee County filed. |
| Jul. 03, 1989 | Letter to REM from T. Reese (avail hearing info/2 att's) filed. |
| Jul. 03, 1989 | Response to Amended Petition to Intervene of Mariner Group, Inc., Mariner Properties, Inc. and South Seas Plantation filed. |
| Jul. 03, 1989 | Motion to Strike Petition of Mariner Group, Inc., Mariner Properties, Inc. and South Seas Plantation filed. |
| Jun. 30, 1989 | Order sent out. (Ruling on Motions) |
| Jun. 26, 1989 | Reply filed. |
| Jun. 20, 1989 | Letter to J. Lutz from A. C. Stanell (re: Photocopies) filed. |
| Jun. 16, 1989 | Response to Lee County`s Motion to Strike Portions of Petitions to Intervene Filed by Responsible Growth Management Coalition, Inc., Donna Buhl, Committee of the Islands, Inc., and James Hayes filed. |
| Jun. 15, 1989 | Department of Community Affair's Response to Amended Petition to Intervene of Mariner Group, Inc. Mariner Properties, Inc., and South Seas Plantation |
| Jun. 15, 1989 | Petition of Economic Development Coalition of Lee County, Inc. for Leave to Intervene filed. |
| Jun. 14, 1989 | Notice of Hearing sent out. (hearing set for Oct. 4-6, 9-13 &16-20, 1989; 9:00am; Tallahassee) |
| Jun. 12, 1989 | Amended Petition to Intervene w/exhibits A-E filed. |
| Jun. 07, 1989 | Letter to REM from E. M. Woodford filed. |
| Jun. 01, 1989 | Petition to Intervene w/exhibits A-E filed. |
| May 31, 1989 | Motion to Strike Petition of Responsible Growth Management Coalition, Inc. and Donna Bulh filed. |
| May 31, 1989 | Answer to Petition for Leave to Intervene by Committee of the Islands, Inc. and James Hayes filed. |
| May 15, 1989 | Motion for Leave to Intervene as Petitioners-in-Intervention by the Responsible Growth Management Coalition, Inc. and Donna Buhl w/exhibits A&B filed. |
| May 15, 1989 | Motion for Leave to Intervene by Committee of the Islands, Inc. As Petitioner-In-Intervention and Petition-in-Intervention w/exhibits A&B filed. |
| May 09, 1989 | Response of 1000 Friends of Florida and Eugene Boyd to Motions to Dismiss and to Strike Filed by Lee County filed. |
| May 05, 1989 | (Respondent) Response to Prehearing Order filed. |
| May 01, 1989 | Motion to Dismiss Petition of 1000 Friends of Florida and Eugene Boyd and Deny Intervention filed. |
| May 01, 1989 | Order Dismissing Petition of Audubon Society of Southwest Florida (not signed) filed. |
| May 01, 1989 | Answer to Petition to Intervene in Determination of Non-Compliance of Lee County Government Comprehensive Plain by Audubon Society of Southwest Florida filed. |
| May 01, 1989 | Answer to Petition of the Department of Community Affairs filed. |
| Apr. 26, 1989 | Letter to REM from E. Woodford (re: hearing) filed. |
| Apr. 17, 1989 | Petition to Intervene in Determination of Non-Compliance of Lee County Government Comprehensive Plan filed. |
| Apr. 14, 1989 | Initial Order issued. |
| Apr. 14, 1989 | Petition for Leave to Intervene of 1000 Friends of Florida And Eugene Boyd filed. |
| Apr. 05, 1989 | Department's Response to Motion to Dismiss Petition and Request for Fees and Costs filed. |
| Apr. 04, 1989 | Petition of the Department of Community Affairs (+ exhibit A-B) filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 10, 1994 | Agency Final Order | |
| Jan. 07, 1993 | Recommended Order | Plan amendments consistent with settlement agreement so petitions dismissed. |
