STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

et al., )

)

Petitioners, )

)

vs. ) CASE NO. 91-5960GM

)

)

LAKE COUNTY, et al., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above-styled matter in Tavares, Florida, on February 15-17, 1994 and March 30-31, 1994.

APPEARANCES

For 1000 Friends of Florida and Hal Turville: Richard Grosso, Esquire

1000 Friends of Florida Civil Law Clinic

NOVA Southeastern University 3305 College Avenue

Fort Lauderdale, Florida 33314

For Lake County Conservation Council, et al.

Rolon W. Reed, Esquire Post Office Box 565 Lake Jem, Florida 32745

For Claude Smoak, Lake County Cattlemen's Association, Lake County Farm Bureau, et al.

Claude Smoak, Pro Se 8810 County Road 561

Clermont, Florida 34711

For Lykes Development Corp, et al., Dale Ladd, et al., and Chris Blanton, et al.

Cecelia Bonifay, Esquire Post Office Box 39 Tavares, Florida 32778

For Charles Bradshaw, et al.

Tom Cloud, Esquire Gray, Harris & Robinson Post Office Box 3068

Orlando, Florida 32802-2068 For Lake County:

Frank Gaylord, Esquire County Attorney

Post Office Box 7800 Tavares, Florida 32778

For Department of Community Affairs: Michael P. Donaldson

Assistant General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issue in this case is whether the comprehensive plan and subsequent remedial plan amendments adopted by Lake County are "in compliance" pursuant to Chapter 163, Part II, Florida Statutes (F.S.).

PRELIMINARY STATEMENT

On February l, 1991, Lake County (County), submitted its proposed comprehensive plan to the Department for review. The Department responded on May 14, 1991, by forwarding to the County an Objection, Recommendation and Comment (ORC) Report. The ORC Report contained the Department's objections, comments, and corrective recommendations concerning the proposed plan.

After considering the ORC Report, the County on July 9, 1991, adopted the comprehensive plan via Ordinance No. 1991-12. The Department, on August 30, 1991, determined that the adopted comprehensive plan was not "in compliance," as that term is defined by Section 163.3184(1)(b), F.S. Thereafter the Department, pursuant to Section 163.3184(10)(a), F.S., filed with the Division of Administrative Hearings (DOAH) a petition for administrative hearing. The case was assigned DOAH Case No. 91-960GM.

Subsequently, intervenor status was granted the City of Eustis (Eustis); Chris Blanton, et al., (Blanton); 1000 Friends of Florida and Hal Turville (Friends); Lake County Conservation Council, et al., (Council); Dale Ladd, et al., (Ladd); Claude Smoak (Smoak); the Lake County Cattlemen's Association (Association); and the Lake County Farm Bureau (Bureau).

The Department and the County began settlement discussions which culminated in the creation of a Stipulated Settlement Agreement. On November 3, 1992, the County, via Ordinance No. 1992-10, adopted remedial plan amendments. The Department, on December 23, 1992, found those amendments to be not "in compliance," and initiated another administrative challenge pursuant to Section 163.3184(10)(a), F.S. This proceeding was assigned DOAH Case No. 93-0057GM.

After further extensive settlement negotiations, the County and the Department entered into a second Stipulated Settlement Agreement. On March 11, 1993, the County adopted the remedial amendments suggested by the second settlement agreement. On April 22, 1993, the Department found the remedial amendments, for several limited reasons, to be not "in compliance." Again, the Department requested an administrative hearing and the matter was assigned DOAH Case No. 93-2289GM.

The Department subsequently moved to consolidate DOAH Case No. 93-2289GM with DOAH Case No. 91-5960GM. Friends and Council filed petitions to Intervene in DOAH Case No. 93-2289GM, which were both granted. Eustis, apparently having their issues addressed by the second set of remedial amendments, filed a Voluntary Dismissal from all Lake County Comprehensive Plan proceedings. In adopting the second set of remedial amendments the County rescinded Ordinance No. 1992-10, which adopted the first set of remedial amendments. Based on the recision, the Department voluntarily dismissed its Petition for administrative hearing and DOAH Case No. 93-0057GM was closed.

In a further attempt to resolve the compliance issues remaining from consolidated DOAH Case. Nos. 91-5960GM and 93-2289GM, the Department and the County entered into a third Stipulated Settlement Agreement, which was effective August 20, 1993. On August 26, 1993, the Department filed a Joint Motion to Abate DOAH Case No. 93-2289GM to allow the County ample opportunity to adopt remedial amendments. The motion seeking abatement was granted and the previously consolidated cases were separated. The County adopted the amendments requested by the third Stipulated Settlement Agreement on August 24, 1993, and those amendments as well as the underlying comprehensive plan, were found "in compliance" pursuant to a Cumulative Notice of Intent issued on October 18, 1993.

The Department on February 11, 1994, attempted to reconsolidate the DOAH cases, but the motion was denied. Thereafter, the Department and the County, pursuant to Section 163.3184(16), F.S., filed a Motion to Dismiss Formal Proceedings in DOAH Case No. 93-2289GM. The motion was granted by the Hearing Officer in DOAH Case No. 93-2289GM on March 14, 1994, by entry of an Order Relinquishing Jurisdiction which closed the DOAH file and relinquished jurisdiction to the Administration Commission.

Intervenors, Friends and Council were permitted at hearing to present testimony and evidence concerning their respective claims previously raised in DOAH Case No. 91-5960GM. The Intervenors' claims are as follows:

FRIENDS

1. The size and configuration of the "Core/Conservation" land use category and the densities authorized therein are not based on the best available data and analysis concerning the suitability, need for, and most appropriate use of the Green Swamp Area of Critical State Concern (GSACSC). If based upon the best available data and analysis, the "Core/Conservation" category would cover a larger area and would authorize

   maximum densities of between one unit per forty acres and one unit per one hundred and sixty acres. A redrawn "Core/Conservation"

   category would result in redrawn "Rural/ Conservation", "Transition", and "Ridge" categories, with correspondingly lower densities.

   1. The Future Land Use Map and Element is not based upon data and analysis concerning the large area of the GSACSC that is unsuited for septic tanks due to severe soil constraints.

   2. The Future Land Use Map and Element is not based upon the data and analysis concerning the need for the protection and conservation of natural resources including the wildlife functions of the GSACSC, and the need for wildlife corridors.

   3. The Future Land Use Map and Element is not based upon the data and analysis concerning the general vulnerability of the ground and surface water resources, the wetland resources, and the other functions and values of the GSACSC.

   4. The Future Land Use Map and Element densities do not reflect and are inconsistent with objectives and policies elsewhere in the plan concerning the protection of natural resources.

2. The plan does not meet the inter- governmental coordination requirements of Chapter 163 and Rule 9J-5 relative to coordination with Polk County concerning the GSACSC.

3. The plan does not meet the requirements concerning coordination with the Principles for Guiding Development for the GSACSC.

4. The plan does not meet the statutory and rule requirements concerning the correction

   of existing wastewater deficiencies because it perpetuates the County's reliance on septic tanks and package plants as the predominant methods of effluent treatment and disposal, despite the documented and projected problems associated with these methods.

5. The plan does not meet the statutory and rule requirements concerning the protection

   of natural resources from the adverse impacts of mineral extraction.

6. The plan does not meet the statutory and rule requirements concerning the use of the best available, professionally acceptable

data because it is not based upon and fails to implement the best available data and analysis concerning the resources of the GSACSC.

COUNCIL

1. The FLUM (Map 1-1) and supporting Table V-1 allocate far too much currently vacant land for Urban, Urban expansion and Suburban. The plan currently allocates 113,000 acres to these three land uses, of which 66,500 are slated or residential. A more realistic multiplier (based on actual population and growth projection) applied to the number of residential acres actually needed for the planning period (1990-2005) to accommodate the 159, 662 people projected to live in these three zones would allocate only 73,000 acres to these three categories instead of 113,000 of which only 40,600 instead of 66,500 would be residential. The County's current multiplier is well in excess of the

   1.25 urged last year by DCA. (See DCA memo of 9-92 in response to 8/31/92 Exhibit B.)

2. The current FLUM and all prior ones conceal some 116 high density paper plats, PUDS and other projects previously approved for vacant rural areas. (See Lake County PUD map Updated 4/92 and Lake County US 27/192/ Turnpike/Montverde map Updated 4/92.) These projects are entirely inconsistent with current land use allocations and render the supporting tables grossly inaccurate. Policy 1-12.5 of the 1991 Comp Plan vested prior PUDs for two years only if development began prior to July 16, 1991. This policy was dropped from the amended plan and must be restored. Other high-density prior projects, if vested by statute or common law, must be shown on the FLUM and included in supporting tables, which then must be further revised to preserve a realistic multiplier for Urban, Urban Expansion and Suburban land use allocation.

   
   

   At hearing, Friends called five witnesses and introduced 15 exhibits. The Hearing Officer reserved ruling on 2 additional exhibits. Council called three witnesses and introduced 3 exhibits. County called five witnesses and introduced 14 exhibits. The Department called one witness and introduced 3 exhibits. Ruling was reserved at the final hearing regarding admissibility of 1000 Friends' Exhibit No. 23, The Green Swamp System, A Scientific Analysis by the Green Swamp Task Force 1992 (Task Force Report), and 1000 Friends' Exhibit No. 24, a government document known as the McDaniel Memo.

   
   

   While the Task Force Report was not finalized until July of 1992, many of the data sources used in that report mirror those found in the Lake County Comprehensive Plan adopted July 1, 1991. To that extent, that data is admissible in this proceeding. Other portions of Exhibit 23, as well as the content of Exhibit 24, are treated as hearsay for purposes of factual findings contained in this recommended order.

   No transcript of the final hearing was provided by the parties. Proposed recommended orders were timely submitted by all parties, except for Lake County Cattlemen's Association; Lake County Farm Bureau, et al; Claude Smoak; and Charles Bradshaw, et al.

   
   

   Proposed recommended orders that were timely submitted and considered by the hearing officer are further addressed in the appendix to this recommended order.

   
   

   
   

   Department

   FINDINGS OF FACT PARTIES

   
   

   1. The Department is the state land planning agency charged with the responsibility of reviewing comprehensive plans pursuant to Chapter 163, Part II, F.S., and Chapter 380, F.S., as it relates to the Green Swamp Area of Critical State Concern.

      
      

      Friends

      
      

   2. Friends, is a not-for-profit tax exempt membership corporation, founded for the express purpose of overseeing implementation of Chapter 163, Part II, F.S. Friends has members who reside in, own property and operate businesses within the County. Friends submitted oral and written objections during the County's review and adoption proceedings. Friends is an "affected person." Friends did not challenge the cumulative notice issued in DOAH Case No. 93-2289GM.

      
      

      Hal Turville owns property and resides in the County. Turville submitted oral and written objections during the review, and adoption proceedings.

      Turville is an "affected person." Turville did not challenge the cumulative notice issued in DOAH Case No. 93-2289GM.

      
      

      Lake County Conservation Council

      
      

   3. Council et al. is a not-for-profit Florida corporation whose business is the preservation of the natural resources and the quality of life in the County. Members of the Council submitted oral or written comments during the plan review and adoption proceedings. Council is an "affected person." Council failed to challenge the cumulative notice issued in DOAH Case No. 93-2289GM.

      
      

      The individual Petitioners who sought intervention simultaneous with the Council are all natural persons who own real property and/or conduct business in the County. All Petitioners submitted oral or written objections during the plan review and adoption proceedings. All Petitioners are "affected persons." These Petitioners however, failed to challenge the cumulative notice issued in DOAH Case No. 93-2289GM.

      
      

      CLAUDE SMOAK/LAKE COUNTY CATTLEMEN'S ASSOCIATION/ LAKE COUNTY FARM BUREAU

   4. Smoak is a resident and property owner in the County. Smoak submitted written and oral comments during the plan review and adoption proceedings. Smoak is an "affected person."

      Lake County Cattlemen's Association is a Florida nonprofit membership association which conducts business in the County. The Association, on behalf of its members who own property or conduct business in the County, submitted oral or written comments during the plan review and adoption proceedings. The Association is an "affected person."

      
      

      Lake County Farm Bureau is a Florida nonprofit membership association which also conducts business in the County. The Bureau submitted comments during the plan review andadoption proceedings. The Bureau is an "affected person." 1/

      
      

      LYKES DEVELOPMENT CORPORATION, et al./DALE LADD, et

      
      

      al./ CHRIS BLANTON, et al.

      
      

   5. Lykes Development Corporation, et al., Dale Ladd, et al., and Chris Blanton, et al., are owners of real property and/or own and conduct business within the County. Intervenors submitted oral and written comments during the plan review and adoption. Intervenors are "affected persons."

      
      

      LAKE COUNTY

      
      

   6. Lake County is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Part II, F.S. The County is located in central Florida, with the incorporated City of Tavares being the County seat. The County is bordered by Orange, Seminole and Volusia Counties to the east and northeast; Marion and Sumter Counties to the west and northwest; and Polk County to the South. The County is approximately 1,150 square miles in size, or approximately 736,000 acres. The unincorporated County's population in 1990, including seasonal population, was 123,555, and is projected to be 177,402 by the year 2005. The economy of the County in years past relied upon the citrus industry. Recent freezes, however, caused the loss of approximately 90 per cent of the citrus crop. The County is currently making a transition to a more urban economic base. The County contains many natural resources including the Wekiva River Protection Area, the Ocala National Forest, and the Green Swamp.

      
      

      GREEN SWAMP CONCERNS

      
      

   7. The primary focus of the challengers' remaining issues concerns the level of protection afforded the Green Swamp. The Green Swamp is approximately 556,000 acres in size, encompassing portions of Lake, Polk, Pasco, Hernando, and Sumter Counties. As of 1974, approximately 200,000 acres of the Green Swamp was in public ownership, either by state agencies, water management districts, local governments, or environmental protection organizations. Of the remaining 356,000 acres, approximately 106,000 acres are located in Lake County. The 106,000 acres within Lake County are comprised of approximately 60 per cent uplands and 40 per cent wetlands and lakes. The Green Swamp is not a continuous expanse of swamp, as its name implies, but instead is a composite of swamps separated by flatwoods, low hills and ridges, and sinkhole lakes. The Green Swamp serves as the headwaters of five major rivers: The Hillsborough, Withlacoochee, Peace, Oklawaha, and Kissimmee Rivers.

      
      

   8. In the early 1970's, the Florida Legislature designated the Green Swamp, because of its environmental importance and sensitivity, as an Area of Critical State Concern (ACSC) under Chapter 380, F.S. The Green Swamp was designated an ACSC due partly to the important role this large relatively

      undeveloped tract of land plays in the protection of the Floridan Aquifer, the main drinking water source for central and south Florida.

      
      

   9. The Floridan Aquifer in central Florida particularly, is near land surface and therefore vulnerable to contamination. The potentiometric high or area of the Floridan Aquifer most susceptible to contamination, however, is not found in Lake County but instead is in adjacent Polk County.

      
      

   10. Other reasons why the Green Swamp was designated as an ACSC include: The abundance and variety of wildlife species and habitat, the important environmental functions played by the wetlands of the Green Swamp, the Green Swamps floodwater retention and treatment capabilities, and as mentioned earlier the Green Swamp's role as the headwaters of five river systems. The Green Swamp is a regionally significant natural resource.

       
       

   11. The Local Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, F.S. (the Act), generally requires at Section 163.3177(6)(d), F.S., that each local government comprehensive plan contain:

       
       

       A conservation element for conservation, use, and protection of natural resources in

       the area, including air, water, water recharge areas, wetlands, water wells, estuarine, marshes, soils, beaches, shores, floodplains, rivers, bays, lakes, harbors, forests, fisheries and wildlife marine habitat, minerals and other natural and environmental resources.

       
       

   12. Rule Chapter 9J-5, F.A.C., is the minimum criteria rule adopted by the Department to further implement the provisions of the Act. Rule 9J-5.005(1)(b), F.A.C., requires that natural resources be designated on the comprehensive plan's existing land use map. Rule 9J-5.005(4)(b), F.A.C., also requires that natural resources be depicted on the Future Land Use Map (FLUM) or map series. Rule 9J-5.005(3)(b)4., F.A.C., further requires that the Future Land Use Element (FLUE) contain one or more specific goals, objectives and policies which ensure the protection of natural resources.

       
       

       GREEN SWAMP/DENSITY

       
       

   13. Intervenors opine that the County's Comprehensive Plan fails to adequately protect the natural resources associated with the Green Swamp, specifically in the Core Area of the Green Swamp. Intervenors primarily base this assertion on the fact that the County did not incorporate a recommendation found in the Task Force Report, which recommended a core density of one dwelling unit per forty acres (1 du/40 acres).

       
       

   14. The Task Force Report is a study which was commissioned by the Polk County Board of County Commissioners as part of the final stages of the development of the Polk County Comprehensive Plan. A technical committee was tasked with the responsibility of compiling information concerning the Green Swamp.

       
       

   15. Representatives of Lake County did not participate in the creation of the Task Force Report, nor did they select any of the representatives who served on the Task Force. Lake County has not had the opportunity to refute the findings of the Task Force or the recommendations of the Task Force Report. While the Task Force Report was not finalized until July of 1992, many of the

       data sources in the Task Force Report mirror those in the Lake County Comprehensive Plan adopted July 1, 1991.

       
       

   16. The Task Force Report (p. 14) recommends that in order to adequately protect the Core Area of the Green Swamp, the land use densities in the Core should be in the range of l dwelling unit per 40 acres to l dwelling unit per

       160 acres. However, as established at the final hearing, that density is but one planning tool which can be used to protect natural resources and even the Task Force Report recognized that if certain planning controls were implemented other requirements could be relaxed.

       
       

   17. In protecting the natural resources of the Green Swamp, the County, as a result of the second settlement agreement, adopted a planning approach which separated the Green Swamp into 4 separate land use classifications. The categories include the Ridge Area, Transition Area, Rural Conservation Area and the Core Conservation Area. Depending on the land use classification, the County established the following criteria:

       
       

       Green Swamp Area of Critical State Concern:

       1. Ridge area: residential densities shall be permitted up to 4 units per acre of uplands. Developments with a density greater than 1 unit per acre must be connected to a regional sewer system, defined as a central sewer system with a capacity of 500,000 GPD or greater. However, a central sewer system having a capacity of at least 100,000 GPD or more may be permitted on a temporary basis until such time as a regional system becomes available. The temporary system shall be staffed by a class C or higher operator for a minimum of three hours per day for five days per week and one visit on each weekend day. Further, these temporary facilities shall be planned, designed, and constructed so that they either serve as the nucleus of a future regional system that later developments will also connect

          to, or can be abandoned and the system merged into a regional sewer system constructed at another location. The maximum impervious surface system constructed at another location. The maximum impervious surface ratio shall be no greater than

          45 percent of the gross development parcel. Maximum building height is 40 feet.

       2. Transition area: residential densities shall be permitted up to 1 unit per acre of uplands. The maximum impervious surface ratio shall be no greater than 30 percent of the gross development parcel. Maximum building height is

          40 feet.

       3. Rural/Conservation: residential densities shall be permitted up to 1 unit per 10 acres of uplands.

       4. Core/Conservation: residential densities shall be permitted up to 1 unit per 20 acres of uplands.

   18. The County adopted further planning controls to limit development and the types of uses allowed within the boundaries of the Green Swamp, specifically the Core. In specifically addressing the Core, the plan at Policy 1-1.15.11 requires:

       
       

       Core/Conservation: All land uses are allowed within the Core/Conservation land use category except for the following land uses:

       1. residential developments over 1 DU/20 AC

       2. commercial development

       3. industrial development

       4. mining, excluding sand mining

       5. roadway construction utilizing public funds except paving which may be provided to assure access for emergency vehicles necessary for the protection of the resident's health, safety and welfare.

       6. Active Tourist Attraction Based Recreation facilities which include such uses as water slide parks, RV parks, stadiums, racetracks, Jai-Alai frontons, arenas, amusement parks, zoological/ botanical gardens and parks, and aquariums.

       7. other active facility based recreation unless provided solely for the purpose of serving the residents within the GSACSC

       8. golf courses

       9. power plants

       10. incinerators

       11. Class I, Class II and Class III sanitary landfills as identified in Chapter 17-701, F.A.C.

       12. airports as defined in Chapter 9J-5.003(3) F.A.C.

       
       

       Notwithstanding the requirements identified above for the Ridge, Transition, Rural/Conservation and Core Conservation land use categories, Class III sanitary landfills as defined in Chapter 17-702, F.A.C. shall be permitted with a Conditional Use Permit at inactive mine and borrow pit sites as identified on Map I-A.

       
       

   19. In addition to the foregoing provisions found in Policies 1-1.13 and 1-1.15, the County adopted a limitation on the number of building permits which could be issued on a yearly basis in the Green Swamp (CAPS). The CAPS also place a yearly limitation on the number of lots which can be created. The CAPS are set out as follows:

       
       

       Policy 1-1.12A:

       As part of the County's efforts to direct growth to the urban land use categories, the County shall limit the number of lots it approves for platting and the number of building permits it issues in the following rural land use categories as follows:

       
       

       LAND USE CATEGORY ANNUAL MAXIMUM

       
       

       LOTS PERMITS

       1. Core/Conservation 35 50

       2. Rural/Conservation 60 50

       3. Rural Villages	250	200
       4. Rural	350	300

       
       

       In no event shall the total annual maximum of platted lots for all of the land use categories set out above exceed 500 lots or

       the maximum number of building permits issued in a year exceed 400.

       
       

       As established at hearing, the allowable building permit cap over the planning period, divided into the number of acres in the Core/Conservation and Rural/Conservation areas yields an overall density of one dwelling unit per sixty acres throughout the Core. Actual building densities could be in the range of one dwelling unit per 80 acres.

       
       

   20. To further limit development, the County adopted minimum open space requirements for all land use categories, including those found in the Green Swamp. The Plan also requires at Conservation Element Policy 7-5.4A minimum wetland buffer requirements for isolated, non isolated and river and stream systems. In FLUE Policy IA-2.9 and Conservation Element Policy 1-2.IE, the plan requires to the extent practicable that wetlands within a project which are to be preserved shall be placed in a conservation easement which shall run in favor of the land.

       
       

   21. The plan at FLUE Policy 1-2.IC limits the wetland densities which may be transferred to uplands in the Green Swamp. Specifically the policy provides that density in the Green Swamp may be transferred from the wetlands to the uplands portions of a site at a ratio of 1 unit per 20 acres. For development in the Green Swamp which uses septic tanks, the plan at Policy 1A-2.8 establishes stringent septic tank requirements which include the periodic mandatory monitoring of septic tank systems.

       
       

   22. In addition to the above-referenced policies, the County adopted plan provisions which address the protection of wildlife and wildlife habitat within the Green Swamp and county-wide. These provisions include Conservation Policies 7-6, 7-7, 7-8 and FLUE Policies 1A-1.3:7 and 1A-2.2:7.

       
       

   23. Through the above referenced policies and requirements, the County put forth a comprehensive approach to protecting the natural resources of the Green Swamp. The County's approach does not rely solely on a density limitation, but also incorporates various planning controls in conjunction with the four Green Swamp land use designations found on the FLUM. The County's approach is consistent with and provides more protection than the 1 dwelling unit per 40 acres density limitation and other requirements suggested by Intervenors.

       
       

       GREEN SWAMP BOUNDARY DESIGNATIONS

       
       

   24. Intervenors assert that the County's designation of the Core area of the Green Swamp on the FLUM is incorrect solely because the boundaries of the Core follow section lines and not the natural resource characteristics of the Core.

       
       

   25. The Act at Section 163.3177(6)(d), F.S., requires that the land use map or map series generally identify and depict natural resources. The Act also, at Section 163.3177(6)(a), F.S., requires that the identification and

       depiction of natural resources be based upon surveys, studies and data regarding the area.

       
       

   26. Rule 9J-5.006(1)(b), F.A.C., requires among other things, that rivers, bays, lakes, floodplains, and wetlands shall be shown on the existing land use map or map series. Rule 9J-5.006(4)(b), F.A.C., makes these mapping requirements applicable to the FLUM. The Act as well as the Rule 9J-5, F.A.C., generally requires that the FLUM, and the designations on it, be based on appropriate data and analysis.

       
       

   27. In depicting the Green Swamp on the FLUM, the County initially analyzed the maps found in the adopted plan's data. This data included generalized maps prepared by several state and federal agencies. These maps were consistent with and in most cases mirrored those used by Intervenors in developing their depiction of the Green Swamp boundaries.

       
       

   28. These maps include but are not limited to: A Floodplains Map, prepared by the Federal Emergency Management Agency (FEMA), a Wetlands Map prepared by the East Central Florida Regional Planning Council (ECFRPC), maps showing lakes, and major drainage basins prepared by the County, using information provided by the United States Geological Survey (USGS), a Generalized Soils Map prepared by the County using information prepared by the Lake County Soils Conservation Service (SCS), Natural Communities Maps prepared by the Center for Wetlands Land Cover, Groundwater Resource Maps prepared by the County using information from the St. Johns River Water Management District (SJRWMD), Groundwater Pollution Potential Maps, prepared using DRASTIC information from the Environmental Protection Agency (EPA), and Potentiometric Surface Maps prepared using information by the USGS and SJRWMD.

       
       

   29. Based on these maps as well as those maps found in the 1974 Green Swamp Report, the County began preparation of the boundaries which comprise the land use categories of the Green Swamp. Because of the increased development limitations imposed by the Core/Conservation Area, the County took the additional step of "ground truthing" the boundaries of the Core Area.

       
       

   30. The County's purpose in ground truthing was to make the Core boundary as accurate as possible. Based on this additional step, the County determined the boundaries of the Core. The boundaries were not at major variance from already established section lines and the County therefore, used these section lines to delineate the Core. The section lines relate to the natural resources actually on the ground.

       
       

   31. In any event, the natural resources (wetlands) which Intervenors are concerned with, based on the plan policies referenced earlier, will receive adequate protection regardless of whether they fall within the Core/Conservation land use category or the Rural/Conservation land use category.

       
       

       INTERGOVERNMENTAL COORDINATION

       
       

   32. Intervenors allege that Lake County has failed to coordinate with adjacent local governments concerning the protection of the Green Swamp and that a commission ought to be established consisting of representatives from the several local governments in which the Green Swamp is located. This Commission's sole responsibility would be to coordinate further protection of the Green Swamp.

   33. The Act at Section 163.3177(6)(h), F.S., requires the comprehensive plans to include:

       
       

       An intergovernmental coordination element showing relationships and standing 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, and with the state comprehensive plan, 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 or on

       the state comprehensive plan, as the case may require.

       
       

   34. Rule 9J-5.015(3), F.A.C., goes on to require the Intergovernmental Coordination Element to contain goals, objectives and policies which coordinate the County's comprehensive plan and the development impacts which may occur with the comprehensive plans and potential development impacts of adjacent local governments. Rule 9J-5.015(2)(d), F.A.C., also requires the coordination of the County's plan with the rules, principles for guiding development, and development regulations in any designated area of critical state concern. (Rule 9J-5.015(3)(a-c), F.A.C.)

       
       

   35. The County has adopted an Intergovernmental Coordination Element. Goal 9 clearly provides that the purpose of the element is:

       
       

       To foster improved governmental efficiency

       and effectiveness and resolve incompatibilities or conflicts through mechanisms which encourage cooperation, communication and coordination between Lake County and its municipalities, adjacent governments, regional, state, and federal government and quasi government entities in order to establish improved growth management, development activities and natural resource conservation.

       
       

   36. The Element also contains policies and objectives which address the county's communication and coordination with various entities including adjacent counties. Specifically at Objective 9-10 the adopted plan provides:

       
       

       Lake County shall coordinate with its seven adjacent counties on comprehensive planning issues such as land use activities and public programs which would affect either Lake County or the adjacent county.

   37. The element also includes Policy 9-10.1 which provides:

       
       

       Upon Comprehensive Plan adoption, Lake County shall institute a program whereby a request will be made to the seven adjacent counties for Lake County to received and review the

       comprehensive plans and proposed plan amendments for impacts to Lake County which are or may be inconsistent with the Lake County Comprehensive Plan Goals, Objectives and Policies. The County shall reciprocate by forwarding its comprehensive plan and plan amendments to the adjacent counties. Any conflicts arising from this exchange of informa-

       tion shall be handled amongst the parties or through the informal mediation process outlined above in Policy 9-9.1.

       
       

       Policy 9-10.2, further provides:

       Lake County shall coordinate growth management issues which overlap jurisdiction boundaries through cooperative communications with the staff and appropriate officials by presenting Lake County concerns through documented trans- mittals, scheduled meetings, attendance at public hearings, joint and hoc technical coordination committees, and, where relevant, less formal communications. The County shall reciprocate by notifying the adjacent counties' staff and officials of functions where their attendance is warranted. Growth management issues to be pursued, but are not limited to, consist of the following:

       1. Continued participation in the four corners group meetings between Polk, Orange,

          Osceola, and the Reedy Creek Improvement District.

       2. Continued coordination between Sumter County on the proposed Federal Prison; Marion and Sumter Counties on development patterns and their effects on levels of service on the Lake County portion of U.S. 27/S.R. 500; Seminole and Orange Counties (and the Orlando/Orange County Expressway Authority) on the proposed Northwest Beltway and the resource management of the Wekiva River Protection Area; Seminole County on the expansion of the airport and the proposed mall in the Sanford Area; Orange County and the Florida Turnpike; Orange, Osceola, and Polk counties and the RCID on the ever expanding tourist commercial center, Polk County on the development pattern on South U.S. 27 and issues related to the Green Swamp ACSC.

       
       

   38. While Intervenors suggested that the plan establish a committee whose purpose is to better review development within the Green Swamp, the testimony at the final hearing establishes that such an endeavor could not be mandated through a plan's Intergovernmental Coordination Element.

   39. In addressing coordination with the principles for guiding development pursuant to Rule 9J-5.015(2)(d), F.A.C., the FLUE at Policy 1-17-2 provides:

       
       

       Residential development in the Green Swamp Area of Critical State Concern shall conform to the regulatory guidelines and objectives outlined in the Principles for Guiding Development for the Green Swamp Area of Critical State Concern.

       
       

       Policy 1-17.5 goes on to adopt the language of Rule 28-26, F.A.C., which contains the Principles for Guiding Development. As with all other plan provisions all development must be consistent with these policies and therefore also, consistent with the Principles for Guiding Development for the GSACSC.

       
       

       URBAN SPRAWL/MULTIPLIER

       
       

   40. Intervenors allege that the plan fails to discourage urban sprawl specifically in the Green Swamp and generally Countywide. As justification for this allegation Intervenors assert that the data used to analyze future needs did not include certain vested developments and also that the "multiplier" was calculated in an incorrect manner.

       
       

   41. Generally, the Act, the State Comprehensive Plan, and Rule 9J-5, F.A.C., require that each comprehensive plan should work to discourage urban sprawl. In addressing these requirements, the County adopted a new FLUM which encouraged development to occur adjacent to existing municipalities and areas where services were available to support future development. The revised FLUM works to discourage urban sprawl.

       
       

   42. In addition, the FLUM was also revised to provide a clearer separation of urban and rural land uses which is another way in which a plan discourages urban sprawl. This was accomplished by the elimination of the Semi-Rural land use category and the reduction in densities in the Urban, Urban Expansion, Suburban, Rural Village and Rural land use categories.

       
       

   43. In a further effort to discourage urban sprawl the County adopted plan provisions which serve to direct growth to the more urban areas of the County and ensure that such development occurs in a timely manner. For example, the amount of building permits issued per year in the Core Conservation, Rural Conservation, Rural Villages, and Rural land use categories is limited. In addition, the plan establishes criteria concerning the provision of sanitary sewer in the Urban and Urban expansion areas which require either a public or private sewer systems to be in existence before development can occur in these areas. Further, the plan specifically provides guidance and timing criteria for the location of development within the Suburban land use designation. Based on the plan provisions and the requirements found therein it is clear that the plan discourages urban sprawl.

       
       

   44. In addressing the issues raised concerning the multiplier, testimony at hearing establishes that developing a multiplier is more an art than a science. Generally, a multiplier is a calculation which analyses many factors including total projected population, densities established on the FLUM, projected need and projected growth. Based on these factors, the calculation

       yields a percentage of future development that will be allowed or allocated over the planning period. An unusually high multiplier may indicate that a plan fails to discourage urban sprawl. A local government, to allow some degree of development flexibility in the plan, will allocate more land than is actually needed.

       
       

   45. The overall multiplier calculated by the County was approximately

       4.88. The multiplier was calculated using acceptable professional planning methodologies and is well within the range of the multipliers for plans of other counties found acceptable by the Department. This is especially true when the multiplier is considered in combination with the planning controls and limitations discussed earlier. The multiplier does not indicate a failure to discourage urban sprawl.

       
       

       MINING

       
       

   46. Intervenors allege that the plan fails to meet the statutory and rule requirements concerning the protection of natural resources from the adverse impacts of mineral extraction. As discussed earlier the Act and Rule 9J-5, F.A.C., generally require that a comprehensive plan must address the protection of natural resources. The Act also mandates that plan must be consistent with the requirements of Chapter 187, F.S., the State Comprehensive Plan. Chapter 187, F.S., specifically at Section 187.201(14)(a), F.S., establishes as a goal the following:

       
       

       Florida shall protect its air, land, and water resources from the adverse effects of resource extraction and ensure that the disturbed areas are reclaimed or restored to

       beneficial use as soon as reasonably possible.

       
       

       Section 187.201(14)(b)5., F.S., goes on to implement this by requiring the prohibition of:

       
       

       resource extraction which will result in an adverse effect on environmentally sensitive areas of the state which cannot be restored.

       
       

   47. The plan at Objective 7-13 provides:

       
       

       The County shall regulate extraction activities to minimize any adverse impacts to the quality of the air, surface waters, groundwaters, land and wildlife.

       
       

   48. Policy 7-13.1 goes on to establish a prohibition of mining in specified areas in the County. In relevant part, the Policy prohibits:

[M]ineral extraction in the environmentally sensitive areas of the County which cannot be restored. Areas within Lake County which fall in this include, but are not limited to, the limestone deposits within the Green Swamp

Wildlife Management Area and the Okahumpka Swamp, . . .

Policies 7-13.2 through 7-13.11 further provide mining criteria which address mining in other

natural resources such as prime aquifer recharge areas. The plan clearly contains policies and objectives which address the protection of natural resources from the adverse impacts which may result from mining.

CONCLUSIONS OF LAW

1. Pursuant to Section 120.57(1) and Section 163.3184(9)(b), F.S., the Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding.

   
   

2. The purpose of these proceedings is to determine whether the Lake County Comprehensive Plan and subsequent remedial plan amendments pursuant to Section 163.3184(16), F.S., are "in compliance."

   
   

3. The term "in compliance," pursuant to Section 163.3184(1)(b), F.S., means the underlying plan and plan amendment must be consistent with the requirements of Sections 163.3177, 163.3178, and 163.3191, F.S., the State Comprehensive Plan, the Regional Policy Plan and Rule 9J-5, F.A.C.

   
   

4. Intervenors must show by a preponderance of the evidence that the Lake County Comprehensive Plan is not "in compliance."

   
   

5. Based on the testimony and evidence presented at hearing, Intervenors have failed to show by a preponderance of the evidence that the plan as amended is not "in compliance". Specifically, Intervenors have failed to show that the plan and subsequent amendments fail to adequately protect the GSACSC as alleged in Friends' claims 1(a-d), 2, 3, 4, 5, 6, and Council's claims 1 and 2.

   
   

6. Intervenors have also failed to challenge the Cumulative Notice of Intent issued by the Department in DOAH Case No. 93-2289GM. In issuing the Cumulative Notice, the Department determined pursuant to Section 163.3184(16)(e), F.S., that the remedial amendments adopted by the County adequately addressed the inconsistencies that led to the original not "in compliance" determination.

   
   

7. As Section 163.3184(16)(e), F.S., clearly provides:

   
   

   The state land planning agency, upon receipt of a plan amendment adopted pursuant to a compliance agreement, shall issue a cumulative

   notice of intent addressing both the compliance agreement amendment and the plan or plan amendment that was the subject of the agreement in accordance with subsection (8).

   
   

   Subsection (8) is the provision which authorized the Department's original notice of intent which found the County's Comprehensive Plan not "in compliance" on August 30, 1991.

   
   

8. Based on this language, and the streamlining intent of the cumulative notice provisions (See, Department of Community Affairs v. DeSoto County, DOAH Case No. 91-6039GM, Final Order entered on January 18, 1993), it is clear that the cumulative notice filed in DOAH Case No. 93-2289GM must supersede the original Notice of Intent issued in DOAH Case Nos. 91-5960GM.

9. The language of the Cumulative Notice issued in this case provides:

   
   

   The Department issues this cumulative notice of intent to find the Lake County Comprehensive Plan adopted by Ordinance No. 1991-12, on

   July 9, 1991, and the amendments adopted by Ordinance No. 1993-2 on March 2, 1993, and

   Ordinance No. 1993-12 on August 24, 1993,

   IN COMPLIANCE, pursuant to Sections 163.3184 and 163.3187, F.S.

   
   

   The notice goes on to further provide:

   
   

   Failure to file a timely petition shall constitute a waiver of any right to request an administrative proceeding. If no petition is filed, this Notice of Intent shall become final agency action.

   
   

10. Intervenors, Friends and Council moved to Intervene in both DOAH Case Nos. 91-5960GM and 93-2289GM. Intervenors also filed amended petitions in those cases. Neither Intervenor, however, filed a challenge to the Cumulative Notice. Further, neither Intervenor filed written objection to the Joint Motion to Dismiss Formal proceedings filed in DOAH Case No. 93-2289GM.

    
    

11. The Cumulative Notice based on the statutory language must be found to supersede the original Notices and Statements of Intent. Any issues Intervenors continued to maintain therefore, should have been carried forward through a challenge to the Cumulative Notice. No such challenge was filed and the Intervenors' claims should be deemed waived.

RECOMMENDATION

It is recommended that a final order be entered finding that the Lake County Comprehensive Plan, as subsequently amended, is "in compliance".

DONE and ENTERED this 10th day of August, 1994, at Tallahassee, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings 10th day of August, 1994.

APPENDIX

The following constitutes my rulings on proposed findings of fact submitted by the parties in accordance with requirements of Section 120.59, Florida Statutes.

Proposed Findings of Fact filed by 1000 Friends.

1.-2. Adopted.

3.-4. Rejected, relevance.

5.-12. Rejected, recitation of testimony, relevance. 13.-14. Rejected, relevance.

15.-16. Rejected, subordinate, relevance. 17.-18. Rejected, recitation.

19. Rejected, relevance.

20.-23. Adopted by reference.

24.-47. Rejected, these findings basically recite page numbers and quotations from the data and analysis accompanying the adopted plan.

48.-49. Adopted in principle, although not verbatim. 50.-59. Rejected, cumulative.

60.-64. Rejected, subordinate to hearing officer findings.

65. Rejected, relevance.

66.-72. Rejected, see hearing officer ruling with regard to the task force report. Otherwise, these proposed findings are subordinate to findings of the hearing officer.

73.-74. Rejected, inadequate reference to source.

75.-80. Rejected, see hearing officer ruling with regard to the task force report. Otherwise, these proposed findings are subordinate to findings of the hearing officer.

81.-85. Rejected, cumulative.

86.-92. Rejected, relevance.

93.-104. Rejected, see previous ruling regarding admissibility of the content of the task force report; further the proposed findings are cumulative and subordinate to hearing officer findings.

105.-106. Rejected, relevance.

107.-117. Rejected, cumulative, argumentative and subordinate.

1. Accepted.

2. Rejected, relevance.

3. Accepted.

121.-136. Rejected, subordinate to hearing officer's findings.

1. Rejected, weight of the evidence.

2. Rejected, relevance.

139.-140. Adopted, but not verbatim.

1. Rejected, subordinate to hearing officer's findings in this point.

2. Rejected, relevance.

143.-148. Rejected, subordinate to hearing officer's findings. 149.-153. Rejected, weight of the evidence.

154.-155. Rejected, relevance.

1. Rejected, weight of the evidence.

2. Rejected, see previous ruling regarding the task force report.

3. Rejected, subordinate to hearing officer's finding. Also, see previous ruling regarding task force report.

4. Rejected, opinion.

5. Rejected, legal argument.

6. Rejected, weight of the evidence.

7. Adopted.

finding is rejected as argumentative.

172.-173. Rejected, weight of the evidence.

1. Rejected, subjective and opinion.

2. Rejected, weight of the evidence.

3. Rejected, argumentative.

177.-178. Rejected, not supported by the weight of the evidence. 179.-180. Rejected, subordinate to hearing officer's findings.

181. Rejected, argumentative.

182.-184. Rejected, subordinate to hearing officer's findings.

1. Rejected, no supported by weight of the evidence.

2. Rejected, hearsay.

187.-188. Rejected, weight of the evidence.

1. Rejected, opinion.

2. Accepted.

191.-192. Rejected, cumulative and theoretical. The addition of a policy to the plan requiring the establishment of such a board would not make it so since Lake County would not have the authority to implement such a provision.

193.-194. Rejected, opinion and relevance.

Proposed Findings of Fact filed by The Lake County Conservation Counsel.

1. Accepted.

2. Rejected, inadequate citation of record source.

3. Accepted.

4.-5. Rejected, inadequate citation to record source.

1. Accepted, though not verbatim.

2. Rejected, inadequate citation to record source.

8.-14. Rejected, proposed findings appear directed to the March 1993, amended plan.

1. Rejected, weight of the evidence.

2. Rejected, inadequate citation to record source.

3. Rejected, argumentative and inadequate citation to record source.

4. Rejected, conclusion of law.

5. Rejected, argumentative and conclusionary.

6. Rejected, conclusion of law. 21.-22 Rejected, relevance.

23.-27. Rejected, argumentative, inadequate cite to record source and relevance.

1. Rejected, relevance.

2. Rejected, argument.

30.-31. Rejected, relevance.

32. Rejected, argumentative and lack of relevance. 33.-35. Rejected, relevance.

1. Rejected, weight of the evidence.

2. Accepted as to first sentence. Rejected as to remainder.

3. Rejected, lack of adequate citation to record source.

4. Rejected, weight of the evidence.

5. Rejected, legal conclusion.

6. Rejected, argumentative and lack of adequate citation to record source.

41.-47. Rejected, relevance.

48. Rejected, weight of the evidence.

49.-50. Rejected, relevance.

51.-52. Rejected, weight of the evidence.

53. Accepted.

54.-55. Accepted in substance, although it is recognized that the Lake Wells Ridge runs through a large area of Florida and not just Lake County.

56. Rejected, weight of the evidence.

Proposed Findings of Fact filed by Intervenor, Lykes Development Corp., et al., Dale Ladd, et al., and Chris Blanton, et al.

Counsel for these Intervenors submitted a proposed recommended order of twenty-seven pages. Pages 16 through 24 of that proposed recommended order, contains unnumbered paragraphs and quoted material addressing proposed findings of fact. The proposed recommended order has been reviewed and to the extent possible, addressed by the findings of fact set forth in this recommended order.

Proposed Findings of Fact filed by Lake County.

Counsel for Lake County submitted a proposed recommended order consisting of twenty-three pages. The paragraphs were unnumbered and were not confined to proposed findings and proposed conclusions of law. However, the entire proposed recommended order has been reviewed and, to the extent possible, addressed by the findings of fact contained in this recommended order.

Proposed Findings of Fact filed by Petitioner, Department of Community Affairs.

Petitioner Department of Community Affairs submitted forty-eight numbered paragraphs in the proposed findings of fact of their proposed recommended order. Those proposed findings are treated as follows:

1.-29. Accepted, although not necessarily verbatim.

30. Accepted, although substantially restated to eliminate surplusage and unnecessary statements.

31.-48. Accepted in substance.

Copies furnished:

Terrell K. Arline

Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

Thomas A. Cloud Gray Harris et al.

P. O. Box 3068

Orlando, FL 32802-3068

Frank Gaylord

Post Office Box 7800 Tavares, FL 32778-7800

Jacob D. Varn, Esquire Post Office Drawer 190 Tallahassee, FL 32302

Richard Grosso, Esquire

1000 Friends of Florida Civil Law Clinic

NOVA Southeastern University 3305 College Avenue

Fort Lauderdale, Florida 33314

Rolon W. Reed, Esquire

P.O. Box 565

Lake Jem, FL 32745

Claude Smoak

8810 County Road 561

Clermont, FL 34711

Lake County Cattlemen's Association 21335 Wiygul Road

Umatilla, FL 32784

Lake County Farm Bureau 30241 State Road 19

Tavares, FL 32778

Cecelia Bonifay Attorney at Law Post Office Box 39 Tavares, FL 32778

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 consult with the agency that will issue the final order in this case concerning their 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.

Docket for Case No: 91-005960GM

Orders for Case No: 91-005960GM