STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

and )

)

MAYNARD L. HISS, and )

MANASOTA-88, INC., )

) CASE NO. 91-6018GM

Intervenors, )

)

vs. )

)

SARASOTA COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 30 through April 3, 1992, a formal administrative hearing was held in this case in Sarasota, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael P. Donaldson, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Hiss: Maynard L. Hiss, pro se

1494 Landings Lake Drive Sarasota, Florida 34231

For Manasota-88: Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

For Respondent: Richard E. Nelson, Esquire

Richard L. Smith, Esquire Nelson Hesse Cyril Smith Widman Herb Causey & Dooley 2070 Ringling Boulevard

Sarasota, Florida 34237 STATEMENT OF THE ISSUE

The issue in this case is whether certain amendments to the Sarasota County comprehensive plan, known as the RU-5 amendments, are in compliance with Sections 163.3161 et seq., Fla. Stat. (1991), known as the "Local Government

Comprehensive Planning and Land Development Regulation Act," or Florida's Growth Management Act.

PRELIMINARY STATEMENT

Sarasota County's Comprehensive Plan Amendment RU-5 was adopted, as Sarasota County Ordinance No. 91-41, on July 3, 1991. RU-5 amends the 1989 "Revised and Updated Sarasota County Comprehensive Plan," which is also known as "Apoxsee."

The 1989 plan is the subject of the Final Order, Hiss v. Sarasota County, ACC 90-014, DOAH Case No. 89-3380GM (the Hiss Final Order). The Hiss Final Order determined that the plan was not in compliance and ordered remedial action. The RU-5 amendments are part of the County's remedial actions.

On September 13, 1991, the DCA issued a Notice and Statement of Intent to Find Comprehensive Plan Amendment RU-5 Not In Compliance. Based on the Notice and Statement of Intent, the DCA filed a petition under Section 163.3184(10), Fla. Stat. (1991), on September 20, 1991. Subsequently, Maynard L. Hiss and Manasota-88, Inc., were granted leave to intervene and prosecute petitions also asserting that the RU-5 amendments are not in compliance, both for the reasons asserted by the DCA in its petition and for other reasons. Final hearing was scheduled for the week of March 16, 1992. As a result of prehearing matters that took place in early March, final hearing was continued to the week of March 30, 1992.

On March 11, 1992, the DCA and the County filed a Stipulation in which they agreed that most of RU-5 is in compliance but that parts are not in compliance. They also agreed to the remedial actions necessary to bring RU-5 into full compliance. The intervenors did not join in the Stipulation. Despite the Stipulation between the DCA and the County, the parties took the position that the case should proceed to final hearing, as scheduled, on March 30, 1992, rather than be placed in abeyance pending implementation of the Stipulation between the DCA and the County. 1/

On March 12, 1992, the parties filed a Pre-Hearing Stipulation in which they agreed, among other things, that the intervenors would have the burden to prove by a preponderance of the evidence that the plan is not "in compliance," except that the "County's determination that elements of the plan are related to and consistent with each other shall be sustained if fairly debatable." 2/ In subsequent papers filed by the parties, and in positions taken in the prehearing conference held by conference telephone call on March 25, 1992, the parties confirmed that, notwithstanding the Stipulation between the DCA and the County, they continued to agree on the burden of proof, as stated in the Pre-Hearing Stipulation.

Final hearing was held on March 30 through April 3, 1992. The DCA and the County having reached the Stipulation between them, the intervenors bore the burden of going forward with presentation of evidence to support their contentions that the RU-5 amendments were not "in compliance" in respects other than those to which the DCA and the County already stipulated and that the remedial actions to which the DCA and the County agreed were insufficient. The intervenors presented the testimony of several fact and expert witnesses, including some adverse witnesses. The DCA called Robert Pennock, its Chief of the Bureau of Local Planning, and the County called several fact and expert witnesses.

The parties also had several exhibits identified and moved into evidence during the course of the hearing. At the end of their presentations, they also indicated that there were additional exhibits on their exhibit lists that they wished to have admitted. They were given deadlines for the posthearing filing of the exhibits they wished to have admitted, together with deadlines for filing written objections to the exhibits offered by opposing parties in this manner.

In total, the following exhibits were received in evidence: Joint Exhibits A through K and M through O; Manasota-88 Exhibits 1 through 4, 6 through 9, 11,

12, and 14 through 22; Hiss Exhibits 6, 9, 11 through 19, 21, 23, 24, 25, 27,

28, 30 through 33, 35 through 38, 40, 41, 42, 44, 45, 46, 52 through 57, 59, 61,

63 through 67, 69, 71 through 76, 80, 81, 85 through 88, 90, 92, 95 through 101,

103 through 106, 109, 110, and 112 through 114; Sarasota County Exhibits A-2 through A-13, A-15 through A-39, B-1 through B-14a, C-8, C-9, D-1 through D-4, and D-6 through D-9; and DCA Exhibits B, D, E, F and H.

On April 15, 1992, Manasota-88 also moved for official recognition of an additional document or, in the alternative, to re-open the evidentiary record for receipt of the document as an additional exhibit. Written arguments on the motion were received, and the motion was denied.

Neither party ordered the preparation of a transcript of the final hearing. Deadlines were established for the submission of proposed recommended orders by the intervenors, followed by the submission of responses and proposed recommended orders by the DCA and the County, followed by an opportunity for a reply by the intervenors. By unopposed motions, which were granted, the deadlines were extended several times.

To some extent, the extensions were necessitated by the County's motions to strike the Hiss and Manasota-88 proposed recommended orders. The motions to strike were made in part on the ground that the intervenors' proposed recommended orders exceeded the F.A.C. Rule 22I-6.031(3) 40-page limit and in part on the ground essentially that parts of their proposed recommended orders were immaterial and irrelevant or were foreclosed under principles of res judicata and collateral estoppel. After consideration of written and oral arguments on the motions, they were denied, 3/ but the responses required by the DCA and the County were modified. As a result of these extensions, the DCA and County were given until June 23, 1992, to file their responsive proposed recommended orders, and the intervenors were given until July 15, 1992 to file their replies.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 91 6018GM.

FINDINGS OF FACT

1. Sarasota County's Comprehensive Plan Amendment RU-5 was adopted, as Sarasota County Ordinance No. 91-41, on July 3, 1991. RU-5 amends the 1989 "Revised and Updated Sarasota County Comprehensive Plan," which is also known as "Apoxsee."

   
   

   1. Res Judicata and Collateral Estoppel.--

      
      

2. The 1989 plan, Apoxsee, is the subject of the Final Order, Hiss v. Sarasota County, ACC 90-014, DOAH Case No. 89-3380GM (the Hiss Final Order).

   The Hiss Final Order resulted from the Section 163.3184(9) formal administrative proceeding Hiss initiated after notice by the Department of Community Affairs

   (the DCA) of its determination that the adopted Sarasota County comprehensive plan was "in compliance." After a final hearing, a Division of Administrative Hearings hearing officer entered a Recommended Order on August 14, 1990, recommending that, for certain specified reasons, the plan be found to be not "in compliance." After consideration of the Recommended Order and exceptions to it filed by Hiss, by the County and by the intervenors, the DCA determined that the plan was not in compliance, concluded that, with the exception of the remedial actions recommended by the hearing officer, the Recommended Order should be adopted. The DCA submitted the Recommended Order to the Administration Commission for final agency action (the Hiss Final Order), which was taken on June 4, 1991.

   
   

3. The Hiss Final Order recited in part 4/: PRELIMINARY STATEMENT

   * * *

   The Recommended Order divides Hiss' numerous allegations for the plan's noncompliance into four categories: the first alleging adoption in a manner inconsistent with the minimum criteria regarding public participation, the

   second involving the Recreation and Open Spaces Element, the third involving the Future Land Use Element and Future Land Use Map, and the fourth involving urban sprawl. The Hearing Officer concluded that the plan was in compliance with regard to the first, second

   and fourth of these categories. But, with regard to the third category, the Future Land Use Element and Future Land Use Map, the Hearing Officer concluded that the plan was not in compliance for a number of reasons.

   * * *

   ACTION ON THE RECOMMENDED ORDER

   Pursuant to Section 120.57(1)(b)10., Florida Statutes, the Commission accepts the Findings

   of Fact and the Conclusions of Law contained in the Recommended Order . . . with the exception of the recommended Remedial Action to the extent inconsistent with the Remedial Action ordered below. The Sarasota County comprehensive plan, therefore, is determined to be not in compliance for the reasons set

   forth in the Recommended Order and the following remedial action is ordered.

   REMEDIAL ACTION

   The following remedial action pursuant to the schedule in paragraph 15, below, is hereby ordered to bring the comprehensive plan of Sarasota County into compliance:

   * * *

   1. a. Plan amendments ordered herein shall be prepared by the County and transmitted to the Department of Community Affairs by September 30, 1991.

      1. DCA by October 15, 1991 shall certify to the Commission that the plan amendments have been received.

      2. In the event the plan amendments are not received by that date the DCA shall notify the Commission by October 31, 1991 and the Commission shall review the matter as to the appropriate action to be taken.

      3. DCA shall report to the Commission on the progress of its review of the plan amendments by February 15, 1992.

      4. DCA shall forward a recommendation to the Commission regarding the County's conformance with the remedial action ordered herein no later than June 1, 1992.

         SANCTIONS

         Under the circumstances of this case, the Commission exercises its discretion to impose no sanctions on the County at this time. The Commission retains jurisdiction, however, to consider sanctions available under Chapter 163, Florida Statutes, and to impose sanctions in the future if the County fails to comply with the remedial actions of this order.

         Paragraph 10 of the "Remedial Actions" portion of the Final Order, which required the County to amend Policy 1.1.2 and add or amend other appropriate objectives and policies in the Public Facilities Plan as described therein, contained the following footnote: "Clarifica- tion of the language in the amendments ordered by Remedial Action 10, so long as they do not

         depart from the purposes of the remedial actions ordered, may be made by the County subject to review and compliance determinations by the Department of Community Affairs and this Commission."

         
         

         1. The Walton Tract.

            
            

4. The Walton Tract is approximately 6,151 acres of land in south central Sarasota County. It is about a mile east of Interstate 75 and is presently undeveloped with vegetation typical of the pine flatwood community.

   
   

5. At the time Apoxsee was adopted, the County was in the process of planning for a solid waste disposal complex on the Walton Tract but had not yet identified an exact landfill site on the tract. In Apoxsee, the entire Walton Tract was identifed as the general area for the proposed Central County Solid Waste Disposal Complex, and the entire Walton Tract was designated as "Public Resource Lands."

   
   

   1. Prior Proceeding.--

      
      

6. In part, the Recommended Order adopted in the Hiss Final Order found:

   
   

   1. Neither the FLUM nor the FLUE designates a category of land devoted to conservation use. Designations tending to

      include conservation uses are Public Resource . . ..

   2. The Public Resource Lands designation

   is assigned to, among other parcels, the Walton Tract where any preservation or conservation uses will be subjected to the use of a part

   of the tract as a landfill, as discussed in Paragraphs 246 et seq. The primary provision

   in the plan describing the uses associated with Public Resource Lands is Policy 1.2 of the FLUE, which is "[t]o acquire and protect Public Resource Lands." In addition, FLUE Policy 1.2.3 permits environmental management practices on such lands, including controlled burning. These provisions are readily applicable to the other three parcels designated as Public Resource Lands and the part of the Walton Tract undisturbed by the landfill.

   However, these provisions are inconsistent with the portion of the Walton Tract proposed for use as a major landfill and other areas affected by this intensive use.

   * * *

   1. The inclusion of the entire Walton Tract in the Public Resource Lands is inconsistent with the proposed use of a substantial part of the tract as a major landfill. If the County eliminates this inconsistency by designating the actual landfill area and other affected areas as institutional or other public facilities, the Public Resource Lands designation would be consistent with the conservation designation.

   2. If the actual landfill area remains designated as Public Resource Lands, the designation of the Walton Tract as Public Resource Lands precludes, to the exclusion of fair debate, a finding that the Public Resource Lands designation is consistent with the criterion of a conservation designation.

   * * *

   1. It is fairly debatable that the plan is consistent with the criterion of a policy addressing intergovernmental coordination with respect to the conservation, protection, and

      appropriate use of interjurisdictional vegetative communities. With one exception, it is fairly debatable that the plan is consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands. [F.A.C.

      Rule 9J-5.013(2)(b)7. and 9.] To the exclusion of fair debate, the plan is not consistent with the latter two criteria as applied to the designation of the entire Walton Tract as Public Resource Lands, despite the intended

      use of part of the tract as a major landfill.

   2. The early stages of planning for the landfill may prevent the plan from dealing specifically with the likely environmental impacts of a landfill yet to be designed or

      sited. However, the plan should contain many of the provisions of the management plan promised for the Walton Tract. If, as the Supportive Material indicates, the landfill disturbs one-third of the Walton Tract, siting the landfill among the important environmental resources in the area is a critical task requiring more from the plan than inaccurately

      designating the entire tract as Public Resource Lands or promising the issuance of a management plan at some point in the future.

   3. The plan fails to provide guidelines for a detailed management plan, and guidelines are especially critical for the coordination of a major landfill with sensitive natural resources in the area. Detailed and effective

      safeguards in the plan for the Walton Tract and surrounding natural resources would require that the landfill project conform to these requirements. If some aspect of the landfill design prevents conformance with such plan provisions, the County may amend the plan

      with in [sic] compliance with all procedural requirements of the Act, including public participation and review by DCA.

   4. Absent effective provisions concerning the landfill to be placed in the Walton Tract, it is impossible to find that the plan contains policies addressing implementation activities

   for the protection of existing natural reservations. The Walton Tract is designated in its entirety as Public Resource Lands, and the conversion of

   part of this land to a landfill is not consistent with the protection of the entire tract. The same findings apply with respect to the designation of environmentally sensitive land because the Walton Tract is the site of critical natural resources, including various types of wetlands, part of Cow Pen Slough, and part of

   the Myakka River floodplain, as well as a bank of part of the Myakka River.

   * * *

   402. To the exclusion of fair debate, the FLUM is not consistent with provisions to protect and acquire environmentally sensitive lands due to the conflict between the Public Resource Lands designation of the Walton Tract on the FLUM and the proposed use of part of the tract as a major landfill . . ..

   
   

7. In part, the Recommended Order adopted in the Hiss Final Order concluded:

   
   

   76. Based on the ultimate findings of fact contained in Paragraphs 366 and 367, the plan

   . . . is consistent with the criterion of the designation on the FLUM of proposed conservation

   land uses, if the designation of the part of the Walton Tract proposed for actual landfill use and any other affected area are redesignated

   from Public Resource Lands to another designation such as institutional or other public facilities.

   Otherwise, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of the designation on the FLUM of proposed conservation land uses.

   * * *

   1. Based on the ultimate findings of fact contained in Paragraphs 376 et seq., the plan is consistent with these [9J-5.013(2)(c)7.-9.] criteria with one exception. The plan is not in compliance with the Act and Chapter 9J-5 because the treatment of the entire Walton Tract is not consistent with criteria of the protection of existing natural reservations and designation of environmentally sensitive land for protection. The designation of the Walton Tract as Public Resource Lands despite the proposed use of part of the tract as a landfill demands, to the exclusion of fair

      debate, more specificity in the plan coordinating the land uses that will be permitted on the

      tract with the sensitive natural resources already there.

   2. Because of the intense use proposed for part of the tract and the proximity of important natural resources, the promise to adopt later a management plan for the Walton Tract is insufficient. . . . The proposed uses and special features of the Walton Tract require that, regardless of its future land use designation, the plan provide details of the management plan, if the plan is to contain policies addressing implementation activities

   for the protection of environmentally sensitive lands and existing natural reservations.

   [Fn. 43.--This determination remains applicable even if the County redesignates the Walton

   Tract as institutional or other public facilities.

   Although arguably redesignation could result in the tract losing its status as an existing natural reservation, the tract, or at least parts of it, would continue to represent

   environmentally sensitive lands, whose status is unaffected by any change in designation.]

   * * *

   109. Based on the ultimate findings of fact contained in Paragraph 402, the plan is not in compliance with the Act and Chapter 9J-5 because the FLUM is not consistent with FLUE objectives

   and policies to protect and acquire environmentally sensitive lands with respect to the designation

   of the entire Walton Tract . . ..

8. The Hiss Final Order required the following Remedial Action pertinent solely to the Walton Tract:

   
   

   5. The County shall revise the section in

   the solid waste portion of the Public Facilities chapter that refers to "landfill Site Feasibility Report: Walton Tract and Central County Solid Waste Disposal Complex - Preliminary Cost Estimate" to reflect that the Walton Tract is currently only one potential location for the proposed landfill, subject to additional study.

   The County shall also adopt a policy requiring that at such time as a final decision is made

   on the location and type of solid waste treatment facility to be developed, the Future Land Use Plan Map Series and Public Facilities chapter

   will be amended accordingly to reflect that decision.

   
   

   1. The RU-5 Walton Tract Amendments.--

      
      

9. In part, RU-5 amends Figure 23, a part of the Future Land Use Map (FLUM) Series, to delineate 2,972 acres of the Walton Tract as "Public Resource Lands" and 3,179 acres of the Walton Tract as "Central County Solid Waste Disposal Complex and other Government Use." RU-5 specifically locates a proposed solid waste disposal complex on 550 acres of the 3,179 acres designated as "Central County Solid Waste Disposal Complex and other Government Use." The 2,972 acres in the Walton Tract designated as "Public Resource Lands" were zoned Open Use Conservation (OUC) by Sarasota County Ordinance 90-54.

   
   

10. RU-5 also amends the Public Facilities Element of the Sarasota County Comprehensive Plan (Apoxsee) by adding Objective 2.6 and Policy 2.6.1. Objective 2.6 is:

    
    

    To develop a solid waste disposal complex and site which is economically feasible and which has minimal environmental impacts.

    
    

    Policy 2.6.1 states:

    
    

    The Central County Solid Waste Disposal Complex shall minimize, to the greatest extent possible, potential environmental impacts consistent with the adopted stipulations contained within Ordinance No. 90-54 and Resolution No. 91-149.

    Prior to development of the Central County Solid Waste Disposal Complex a resource based

    Land Management Program shall be adopted consistent with the "Principles for Evaluating Development Proposals in Native Habitats" and all other relevant policies in the Environment Chapter.

    
    

11. The Public Facilities Supportive Material adopted as part of RU-5 states:

    
    

    The Board also approved a special exception for a 550 acre parcel for the Solid Waste Disposal Complex including a sanitary landfill

    and other uses associated with the landfill operations.

    * * *

    In order to minimize potential environmental impacts to the greatest extent possible, stipulations in the special exception approval include requirements for submission of studies such as the completion of a background Water Quality Monitoring Plan and a resource based

    Land Management Program, prior to the development of the landfill or other associated operations.

    
    

    1. Data and Analysis.--

       
       

12. The RU-5 amendments relating to the use of a portion of the Walton Tract for the Central County Solid Waste Disposal Complex are supported by the best available data and by appropriate analysis of the data. The County utilized all the appropriate data available at the time of the adoption of RU-5. All analysis required to be performed on the data through the time of the final hearing was performed and taken into consideration. Both the data and the analysis of the data through the time of the final hearing support the selection of the Walton Tract site for the Central County Solid Waste Disposal Complex.

    
    

13. The total functional population of Sarasota County is projected to increase from 337,471 in 1990 to 475,353 in 2010. Meanwhile, with the closure of numerous unlicensed dump sites in the early 1970s, the County began operating the Bee Ridge Landfill in 1972. Although two of the County's four municipalities formerly operated landfills, those facilities have been closed due to environmental problems. Bee Ridge currently is relied on to serve all the municipalities as well as the entire unincorporated area of Sarasota County. Bee Ridge receives an average of 1,400 tons of solid waste per day (511,000 tons a year). Even assuming a 50% reduction in solid waste disposal through recycling, the County is projected to require solid waste disposal facilities capable of land filling over 850,000 tons per year.

    
    

14. A County study entitled Solid Waste Management and Resource Recovery Plan, completed in 1980, indicated that landfilling would likely remain an essential means of managing the County's solid waste stream for the foreseeable future and that it would be necessary to obtain a replacement facility for the Bee Ridge Landfill.

    
    

15. The Bee Ridge Department of Environmental Regulation (DER) permit expires in 1995. Bee Ridge was not constructed with liners meeting current DER permit requirements. Although the County has installed an underground "slurry wall" at the perimeter to attempt to prevent contamination from leaching out, there is no assurance that DER will renew the permit.

    
    

16. In any event, Bee Ridge is projected to reach its maximum height by the mid-1990s. In addition, the ability to expand Bee Ridge is not assured, due to strong opposition from neighboring property owners.

    
    

17. In 1986, the opportunity arose to acquire the Walton Tract without the use of condemnation, and the County authorized a specific feasibility study performed on the 6,151 acre tract. The study examined the parcel in terms of Florida statutory landfill requirements, physical characteristics of the site, hydrogeology and soils, landfill block configurations, environmental considerations, and regulatory agency comments. Although the study indicated

    that only 3,600 acres would be required for a landfill, the entire tract was purchased on advice of professional staff to maximize siting flexibility and ensure sufficient areas for perimeter buffers, wetland mitigation, and wildlife conservation areas. The purchase price was $8.6 million, paid out of the proceeds of an $80 million Solid Waste System Revenue Bond Issue.

    
    

18. Preliminary cost estimates were prepared for the initial 20 years of the life of a landfill on the site. The estimate came to $39 million.

    
    

19. At the time the Revised and Updated Sarasota County Comprehensive Plan was being compiled in the years prior to its adoption in 1989, the County had not yet identified an exact landfill site on the Walton Tract. Accordingly, Apoxsee identified the entire Walton Tract was identified as the general area for the proposed Central County Solid Waste Disposal Complex.

    
    

20. The Walton Tract was also designated entirely as "Public Resource Lands" since the County regarded the "Public Resource Lands" use designation to permit public facilities in careful conjunction with large conservation areas of important native habitat, e.g., a potable water wellfield and water treatment plant on the Carlton Reserve; a solid waste disposal complex on the Walton Tract; and RV parks, campsites and active recreation facilities at Oscar Scherer State Recreation Area and Myakka River State Park.

    
    

21. In the spring and summer of 1991, after entry of the Hiss Final Order, the Board of County Commissioners held public hearings to determine whether the Walton Tract should once again be designated as the site for the Central County Solid Waste Disposal Complex to accommodate a Class I landfill, composting areas for yard waste and yard waste/sludge recycling, and a Class III landfill for construction debris, and, if so, to determine the specific location and extent of the Complex, in the context of a rezoning and special exception proceeding.

    
    

22. During the course of the hearings the County Commission considered detailed presentations by the county professional staff, expert consultants and the public concerning the suitability of the Walton Tract site, as well as other sites, for a solid waste disposal complex. The Commission also considered, as part of the evidence, a Draft Alternative Siting Study prepared by the engineering firm Camp Dresser & McKee (CDM) to meet the regulatory requirements of the EPA and Corps of Engineers under Section 404 of the Clean Water Act and the requirements of the Recycle Now! Chapter Amendment.

    
    

23. At the conclusion of the hearings, the County Commission, by Ordinance 90-54 rezoned 3,179 acres of the Walton Tract to Government Use (GU) and 2,972 acres to Open Use Conservation (OUC). The Commission, by Resolution 91-149 also designated a reduced 550 acre site (instead of a 1,187 acre site) for the Central County Solid Waste Disposal Complex subject to final action on Comprehensive Plan Amendment RU-5, which was adopted by Ordinance 91-41 on July 23, 1991, after another public hearing at which all the evidence from the rezoning and special exception hearings was received into the record.

    
    

    (a.) Economic Feasibility.--

    
    

24. The Walton Tract site is centrally located in the County, between what are planned to be the County's major population concentrations, and close to the Laurel Road interchange with I-75 which is committed to be constructed by FDOT in 1993 under an agreement with the County. This location provides efficient transportation access to the rest of the County.

25. The trend in solid waste management is toward centralizing solid waste disposal facilities due to the cost of the facilities, including the cost of permitting; the ability to achieve economies of scale; the increased reliability inherent in operating a limited number of facilities; and the advantages of focusing budget-limited management and regulatory compliance resources.

    
    

26. Transportation costs with a centralized facility are offset by the use of transfer stations which greatly compress the solid waste to reduce the number of trips from the transfer station to the central facility. Sarasota County is already successfully using this system.

    
    

27. The Draft Alternative Siting Study identifies three other properties besides the Walton Tract as suitable. During the public hearings before the County Commission, however, two of the sites (D and E) were strongly opposed by citizens living around those potential sites and the third site (G) was closer to the Myakka River and could be in conflict with the Myakka River Wild and Scenic Management Plan.

    
    

28. From the standpoint of economic feasibility, the County Commission was advised:

    
    

    The County has certain bond obligations due to the purchase of site F [the Walton Tract] to provide a solid waste disposal facility. The legal and future bond financing issues must be considered against the potential benefits of selecting another site.

    
    

    The County's bond counsel also advised the County Commission that, if the County elected not to locate the solid waste disposal complex on the Walton Tract, the County would have to pay back to the Solid Waste System Revenue Bond enterprise fund the fair market value of the Walton Tract from some other revenue source.

    
    

    (b.) Adjacent Property.--

    
    

29. In contrast to the other suitable sites, the property owners closest to the proposed site on the Walton Tract are not opposed to the solid waste disposal complex in light of the County's ability to provide 1,000 foot buffers and avoid access conflicts due to the size and location of the Walton Tract.

    
    

30. Due to the 6,151 acre size of the Walton Tract, the solid waste disposal complex, as approved by the County Commission, including all borrow pits, is located more than 8,000 feet from the closest point on the Myakka River, a designated Wild and Scenic River, and the testimony indicates that heavy equipment would not be heard on the river.

    
    

31. Due to the flexibility in siting the solid waste disposal complex, and the 100 foot height limitation placed on the landfill by the County Commission, the landfill will not be seen on Lower Myakka Lake or the Myakka River.

    
    

32. Due to the location of the solid waste disposal complex on the Walton Tract, together with the hydrogeologic characteristics of the site, no adverse impact on the Carlton (Ringling MacArthur) Reserve potable water wellfield located several miles to the east across the Myakka River is to be anticipated.

    
    

33. The restriction of the solid waste disposal complex and associated borrow pits to the northwest portion of the Walton Tract and the designation by

    the County Commission of the remainder of the property as Public Resource Lands results in approximately 3,000 acres of the Walton Tract, contiguous to Myakka River State Park and the Carlton Reserve to the east, being placed in a conservation land use designation, linking these natural areas into a contiguous system of 55,000 acres of high quality native habitat in protected public ownership.

    
    

    (c.) Character of the Walton Tract.--

    
    

34. Hundreds of hours over a period of approximately five years were spend on-site at the Walton Tract by experts in environmental, engineering and other scientific disciplines to collect and analyze data on soils; topography; natural resources, including habitats, flora, and fauna; and historic resources to determine whether, and where, a solid waste disposal complex should be sited on the tract that would be economically feasible and minimize environmental impacts. Every wetland and upland habitat on the Walton Tract as well as likely ecological corridors and preservation areas, including the Myakka River 100 year floodplain and mesic hammocks, have been identified and verified in the field. The methods that were used to identify habitats, including likely habitats of threatened and endangered species, met professionally accepted standards, particularly for planning purposes.

    
    

35. Environmental constraints were identified at the beginning of the assessment of the Walton Tract and drove or determined the siting process. Over the course of a five year period, there were no sightings of threatened or endangered species that would render the designated site of the complex or the borrow pits unsuitable for the proposed use. The designated site was suitable from the standpoint of minimizing environmental impacts.

    
    

36. The pine flatwoods and isolated wetlands within the solid waste disposal complex footprint are neither rare nor endangered, constituting 57% and 17% of the area of the County, respectively, and there are suitable formerly improved pasture areas on the site to mitigate these wetlands on a type-for- type, one-for-one ratio. There is also a large 300 acre area adjacent to Cow Pen Slough suitable for mitigation by rehydrating wetlands previously impacted by the channelization of Cow Pen Slough in the 1960's.

    
    

37. The proposed location of the landfill on the site is the most appropriate from the context of habitat, wetlands and wildlife. The complex and borrow pits protect water resources by being located outside the watershed of the Myakka River and outside the 100 year floodplain of Cow Pen Slough. Also, the Class I landfill will be elevated approximately three feet above grade, and the entire solid waste disposal complex will be surrounded with a bermed stormwater management system at least five feet above grade that will not only treat the stormwater to required standards but also provide additional protection against flooding beyond a 100 year flood event.

    
    

38. The reduced 550 acre size of the solid waste disposal site is reasonable for meeting the solid waste recycling and disposal needs of the County for a 20 year planning period.

    
    

39. CDM used the best available data, including the Federal Emergency Managment Agency (FEMA) Flood Insurance Rate Maps (FIRM), in siting the complex out of the 100 year floodplain. (The U.S. Soil Conservation Service 1985 Flood Plain Management Study of the Cow Pen Slough is not reliable data with respect to the extent of the 100 year floodplain.)

40. The site designated for the landfill on the Walton Tract has no geotechnical or water resource factors that would preclude it from being suitable for a landfill. There is no realistic danger of groundwater contamination of either the surficial or the deeper Floridan aquifer beneath the landfill in light of the required multiple liners and the required leachate collection and treatment systems.

    
    

41. A modern landfill operation is not necessarily incompatible with surrounding wildlife. The landfill would be limited to an exposed working face of solid waste no more than 100 feet by 200 feet which must be covered daily. This reduces the landfill's attactiveness to seagulls and other scavengers. Many species of birds, including sandhill cranes, woodstorks, and bald eagles, continue to be seen within several hundred yards of the working face of the Bee Ridge landfill and its heavy equipment. Over the 12 year existence of the Bee Ridge landfill, there has been no quantifiable decline in such wildlife. The herd of deer adjacent to the landfill had increased substantially over that period.

    
    

    1. Internal Consistency.--

    
    

42. It was not the intent of RU-5's Public Facilities Objective 2.6 and Policy 2.6.1 that the specifically designated site for the solid waste disposal complex on the Walton Tract would be invalidated if any other possible site were found to have even marginally less environmental impact. Although there are other sites arguably with less environmental impacts, according to a rating system developed for evaluating the suitability of potential sites, other factors also went into the selection of the Walton Tract site.

    
    

43. Both Public Facilities Objective 2.6 and Policy 2.6.1 contemplate the development of a solid waste disposal complex and site. They mean that the designated site should be developed in a manner which reduces environmmental impacts as much as possible. It certainly is at least fairly debatable that they contemplate the development of the Walton Tract site as a landfill.

    
    

44. RU-5's amended "Principles for Evaluating Development Proposals in Native Habitats," Section VI.A.2.e., provides in part:

    
    

    In cases where a wetland is no longer capable of performing defined environmental functions and providing defined environmental values,

    or in cases where no other reasonable alternative exists other than disrupting a wetland, some alteration may be allowed.

    
    

    As amended by RU-5, this portion of the "Principles for Evaluating Development Proposals in Native Habitats" focuses on wetland mitigation requirements on other portions of a landowner's property, when a wetland must be altered to allow reasonable, beneficial use of the property. Section VI.A.2.e. of these principles does not require the County, or any other property owner, to demonstate, prior to developing their property, that there is "no reasonable alternative location in the County which impacts less wetlands or an equivalent acreage of wetlands of less environmental value." It certainly is at least fairly debatable that they do not.

    
    

45. The Supportive Material for Apoxsee's Recreation and Open Space Element states: "Large portions of the Walton Tract cannot be used for landfill purposes because they are in the floodplain of either the Myakka River or the

    Cow Pen Slough." Nothing in RU-5 is inconsistent with this data and analysis. The acreage being used for the landfill and associated uses are not in the floodplain.

    
    

46. Through RU-5, Recreation Policy 1.1.4 of Apoxsee provided: "Ecologically benign, non-consumptive, resource-based uses shall be implemented at the Walton Tract and the Ringling-MacArthur Reserve." On March 10, 1992, RU-

    6 was adopted and amended Recreation Policy to provide: "Recreational uses implemented on the Walton Tract and the T. Mabry Carlton, Jr., Memorial Reserve [formerly known as the Ringling-MacArthur Reserve] shall be limited to activities which are ecologically benign, non-consumptive and resource based." It is at least fairly debatable that this policy does not refer to the portion of the Walton Tract designated for use as a landfill.

    
    

47. Future Land Use Element (FLUE) Objective 1.1, as amended through RU-5, restricts land uses on Public Resources Lands by requiring the County: "To protect environmentally sensitive lands, conserve natural resources, protect floodplains, maintain water quality, and maintain open space." FLUE Objective

    1.2 is: "To acquire and protect Public Resource Lands." The implementing policies under FLUE Objective 1.2 include:

    
    

    Policy 1.2.1 -- Sarasota County shall attempt to coordinate efforts to acquire public lands for conservation, preservation and open space. Policy 1.2.2 -- Provide adequate buffering of

    Public Resource Lands for potentially incompatible adjacent land uses.

    Policy 1.2.3 -- Permit normal management practices associated with native habitats.

    
    

    Again, it is at least fairly debatable that these objectives and policies do not preclude the designation of a part of the Walton Tract for use as a landfill.

    
    

48. The Supportive Material for Apoxsee's FLUE states that the County will adopt "detailed management plans" for the Walton Tract (and the Ringling- MacArthur Reserve) and adds:

    
    

    In conjunction with the development of a portion of these two County-owned properties as a waste disposal complex and potable water supply, respectively, subtantial acreage is

    to be preserved to provide for wildlife corridors, wetlands protection, buffering zones, recreation, education, and open space uses. It is critical that any development within, and adjacent to, these Public Resource Lands be compatible with their inherent environmental values as well

    as the public values ascribed to them. The management plans . . . will address this issue.

    
    

49. The County has not yet adopted a management plan for the Walton Tract landfill. But Public Facilities Policy 2.6.1 incorporates the detailed protective stipulations contained in Ordinance 90-54, which zoned the Walton Tract "Government Use" and "Open Use, Conservation," and in Resolution 91-149, which designated the site of the Central County Solid Waste Disposal Complex. These stipulations:

    1. require submission of a background water quality monitoring plan for review and approval by the County Natural Resources Department;

       
       

    2. require a preapplication meeting with the Stormwater Management, Natural Sciences, and Pollution Control Divisions prior to submission of a Master Stormwater Management Plan;

       
       

    3. limit post development runoff volumes to predevelopment volumes for storm events up to the mean annual (2.33-year) storm;

       
       

    4. require design and planting of littoral zones in all stormwater detention lakes in accordance with the County Land Development Regulations;

       
       

    5. require design and planting of littoral zones in all borrow lakes in accordance with the County's Earthmoving Ordinance;

       
       

    6. require submission of a final mitigation plan, including engineer drawings and plans for creating and maintaining adequate hydroperiods in created wetlands for review and approval by the Natural Sciences Division;

       
       

    7. require clear delineation and, during construction, marking of Preservation/Conservation areas;

       
       

    8. require appropriate sediment control devices around buffers of all wetlands within 500 feet of construction;

       
       

    9. prohibit disturbances in any Perservation/Conservation area except in approved construction areas or to provide approved access roads, fire lanes, utility transmission lines or nature trails;

       
       

    10. require notification to the Natural Sciences Division for determination of appropriate remedial action in the event listed species are observed;

        
        

    11. prohibits development of the solid waste disposal complex until a resource-based Land Management Program is prepared, approved and adopted; and

        
        

    12. limits the height of the landfill to 100 feet.

    
    

    In addition, Public Facilities Policy 2.6.1 prohibits development of the solid waste disposal complex until a resource-based Land Management Program is adopted consistent with the detailed requirements of the "Principles for Evaluating Development Proposals in Native Habitats" and the policies of the Environment Chapter of Apoxsee, e.g., Environment Policy 5.5.13, as well as Recreation Policy 1.1.4 and Future Land Use Policies 1.2.2 and 1.2.3.

    
    

50. The Hiss Final Order does not require that a detailed management plan be adopted as part of RU-5 in order for RU-5 to amend the FLUM Series to designate a portion of the Walton Tract as the new County landfill. Rather, it was critical that the 1989 "plan fails to provide guidelines for a detailed management plan, and guidelines are especially critical for the coordination of a major landfill with sensitive natural resources in the area." (Emphasis added.) Recommended Order, Finding of Fact 378. It stated that "the plan should contain many of the provisions of the management plan promised for the Walton Tract." (Emphasis added.) Recommended Order, Finding of Fact 377. While not specifying the management plan guidelines believed to be necessary, the Hiss Final Order found that the plan was not "consistent with criteria of policies addressing the protection of natural reservations and the designation

    of environmentally sensitive lands [referring to F.A.C. Rule 9J-5.013(2)(b)7. and 9.]." (Emphasis added.) Recommended Order, Finding of Fact 376.

    Elsewhere, it found it "impossible to find that the plan contains policies addressing implementation activities for the protection of existing natural reservations." (Emphasis added.) Recommended Order, Finding of Fact 379.

    F.A.C. Rule 9J-5.013(2)(b)7. and 9. require objectives that "[protect] existing natural reservations identified in the recreation and open space element" and "[designate] environmentally sensitive lands for protection based on locally determined criteria which further the goals and objectives of the conservation element." The plan, as amended through RU-5, contains guidelines for a management plan for the Walton Tract that are sufficiently detailed to meet the requirements of F.A.C. Rule 9J-5.013(2)(b)7. and 9.

    
    

51. RU-5 is not inconsistent with the Support Material referred to in Finding 49, above. The final version of the management plan is not data or analysis that must precede the amendment of the FLUM Series.

    
    

52. RU-6 amended Environment Policy 5.5.3 to read:

    
    

    By July 1, 1992, the Sarasota County Board of County Commissioners shall have adopted criteria for conducting and staff shall have conducted an analysis to identify habitats of high ecological values and strategies to

    physically link natural areas into a contiguous system. The criteria for identifying these areas should consider several major factors including the presence of endangered species, outstanding water resources, high quality natural habitat, and value as a wildlife corridor. The Future Land Use Map Series shall be revised to show the location of these

    areas of high quality ecological value.

    
    

    This provision is not inconsistent with RU-5.

    
    

53. The portion of the Walton Tract designated for development as a landfill is made up of pine flatwoods and isolated, seasonal wetlands which are neither rare nor endangered habitats. Except for a minor portion of the westernmost borrow pit, it is outside the 100-year floodplain. 5/ It is outside the watershed of the Myakka River. It is set back from habitats of threatened or endangered species, as well as surrounding property owners. It is reasonably sized to meet the solid waste recycling and disposal needs of the County for the 20-year planning period.

    
    

54. Consistent with Environment Policy 5.5.3, the 2,971 acres of the Walton Tract which RU-5 leaves designated Public Resource Land includes those areas which are contiguous to Myakka River State Park and the Carlton Reserve to the east, linking natural areas into a contiguous system, and providing protection to the outstanding water resources and high quality habitat in the Myakka River watershed and in the Cow Pen Slough watershed in the southernmost portion of the Tract.

    1. Historic and Archaeological Preservation.--

       
       

55. In part, the Recommended Order adopted in the Hiss Final Order found:

    
    

    362. To the exclusion of fair debate, the plan is not consistent with the criterion of the depiction on the ELUM of historic resources. The depicted archaeological sensitivity zones, which represent projections of possible sites, do not purport to represent the location of, for example, the 78 or 79 sites on the Florida

    Master Site Plan and other historical resources, which are concededly vulnerable to development.

    
    

56. In part, the Recommended Order adopted in the Hiss Final Order concluded:

    
    

    1. As relevant to the determinations contained in this section, . . . Rule 9J- 5.006(1)(a)(11), . . . requires that the "following generalized land uses shall be shown on the existing land use map or map series: . . . Historic resources."

    2. Rule 9J-5.003(35) defines "historic resources" to mean:

       all areas, districts or sites containing properties listed on the Florida Master Site File, the National Register of Historic Places, or designated by the local government as

       historically, architecturally, or archaeologically significant.

    3. Based on the ultimate findings of fact contained in Paragraph 362, the plan is not in compliance with the Act and Chapter 9J-5

    because it is not consistent with the criterion of showing historic resources on the ELUM.

    For instance, there are 78 or 79 sites in the Florida Master Site File that are, by definition, historic resources, but are not shown on any ELUM.

    
    

57. The Hiss Final Order required the following Remedial Action pertinent to historic and archeological preservation:

    
    

    2. The County shall revise its existing land use map to show the location of historic resources, including the generalized location of sites listed in the Florida Master Site File or National Register of Historic Places or

    otherwise designated by the County as historically, architecturally or archaeologically significant.

    * * *

    4. The County shall revise its Future Land Use Plan Map Series to include the historic resources mentioned in paragraph 2 above.

    
    

58. RU-5 amends the Historic Preservation Chapter of Apoxsee to indicate that the map provided in Figure 3 in the Future Land Use Map (FLUM) Series shows

    the location of "National Register sites and other historically significant sites in Sarasota County." It also amends Figure 3 to identify 78 National Register sites from the Florida Master Site File. Appendix A to "Section 3: Sites in Unincorporated Sarasota County Listed in the Florida Master Site File" also is amended to list these sites.

    
    

59. In essence, RU-5 follows from the updating of the supporting documentation to Apoxsee by adding to the Existing Land Use Map (ELUM) Series and the FLUM Series verified historically significant sites in Sarasota County, namely the sites found on the National Register and on the Florida Master Site File List.

    
    

60. The County also has performed extensive study of portions of the County in an effort to locate significant historic and archaeological sites. The study has located many potential sites. However, the sites have not yet been fully evaluated to determine if they are historically, architecturally or archaeologically significant. Therefore, they have not yet been added, or proposed to be added, to the National Register or the Florida Master Site File List, and they do not appear in Apoxsee, as amended by RU-5.

    
    

61. The County's determination not to identify and depict more sites on RU-5 is supported by the best available data and analysis.

    
    

62. In addition, RU-5 adopted Future Land Use Element (FLUE) Policy 1.13.1 which provides for the coordination of land uses with the protection of historical resources.

    
    

63. As part of the process for issuing development orders, the County has incorporated review by the County Historian to determine the likelihood of the site being historically significant, and the County places conditions on various development permits to protect historically significant sites.

    
    

64. Except for the failure of Apoxsee, before RU-5, to depict the locations of, "for example, the 78 or 79 sites on the Florida Master Site Plan and other historical resources, which are concededly vulnerable to development," the Historic Preservation Chapter of Apoxsee already has been exhaustively scrutinized and found to be internally consistent and in compliance. See Hiss Final Order.

    
    

    1. Floodplain Delineation and Protection.--

       
       

65. In part, the Recommended Order adopted in the Hiss Final Order found:

    
    

    1. To the exclusion of fair debate, the FLUM is not consistent with criteria of the depiction of floodplains; Big Slough, whether it is classified as a river, floodplain, or wetland; and minerals and soils. . . ..

    2. The omission of floodplains is complete. Nothing in FLUM-2 corresponds to the floodprone areas shown in Figure 27 in the Supportive Material. For example, the Conservation/Preservation areas surrounding the Myakka River are not coextensive with the larger floodplain of the Myakka River depicted in Figure 27. The omission of floodplains is exacerbated by the absence of plan provisions providing effective protection for these critical

    natural drainage features, except for the Myakka River floodplain.

    * * *

    1. To the exclusion of fair debate, the plan is not consistent with criteria of

       objectives to ensure the protection of floodplains (other than that of the Myakka River), floodplain- associated soils, and wetlands (due to the inadequacy of the mitigation provision). Policy

       5.5.8 of the Environment Element promises to adopt land development regulations to regulate develop- ment and specify necessary design standards for floodplains. In the absence of any undertaking

       in the plan to require that land uses in the floodplains be consistent with their function, Policy 5.5.8 does not resemble an objective ensuring the protection of floodplains.

    2. To the exclusion of fair debate, the

       plan is not consistent with criteria of objectives to coordinate the future land uses with topography, soil conditions, and availability of facilities

       and services, with respect to floodplains and the unrestricted use of septic tanks 6/ in the Urban area.

    3. The Supportive Material advises that future land uses in the floodplains must be less intensive than in the past. Except for the Myakka River floodplain, the plan fails

    to coordinate future land uses with the unique topography and soil conditions of the floodplains because the plan does not require that any development in the floodplains be consistent

    with their functions.

    
    

66. In part, the Recommended Order adopted in the Hiss Final Order concluded:

    
    

    83. Based on the ultimate findings of fact contained in Paragraphs 372 et seq., the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with criteria of the depiction on the FLUM of floodplains,

    Big Slough (regardless of its classification as a river, wetland, or floodplain), and minerals and soils.

    * * *

    96. Based on the ultimate findings of fact contained in Paragraph 388, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with criteria of objectives to ensure the protection of flood- plains other than that of the Myakka River, floodplain-associated soils, and wetlands due

    to the inadequacy of the mitigation provisions. 7/

    
    

67. The Hiss Final Order required the following Remedial Action pertinent to floodplain delineation and protection:

    1. The County shall amend "Figure 27: 100-year Floodprone Areas" to depict the location of all 100-year floodplains . . . and adopt Figure 27, as amended, as an addition to the Future Land Use Map Series.

    2. The county shall amend "Figure 5: General Soil Associations in Sarasota County" to indicate

    general locations of known sand and gravel deposits, and adopt Figure 5, as amended, as an addition

    to the Future Land Use Map Series.

    * * *

    9. The County shall adopt a new policy in the Future Land Use Plan, to provide that no development order shall be issued which would permit development in floodplains or on floodplain- associated soils that would adversely affect

    the function of the floodplain, or that would degrade the water quality of water bodies associated with the floodplains in violation of any local, state or federal regulation, including water quality regulations.

    
    

68. In part, RU-5 amends FLUE Objective 1.1 to state: "To protect environmentally sensitive lands, conserve natural resources, protect floodplains, maintain water quality, and maintain open space." RU-5 also adds the following policies:

    
    

    Policy 1.1.5: "All future development shall be consistent with the detailed master plans for each drainage basin as they are adopted through the Basin Master Planning Program." [Revision of Environment Policy 2.1.8.] Policy 1.1.6: "No development order shall be issued which would permit development in

    100-year floodplains, as designated on Federal Emergency Management Agency [FEMA] Flood Insurance Rate Maps [FIRM] or adopted County flood studies, or on floodplain associated soils, defined as Soils of Coastal Islands, Soils of the Hammocks, Soils of Depressions and Sloughs, and Soils of the Floodplains and shown in figure 5, that would adversely affect the function of the floodplains or that would degrade the water quality of waterbodies associated with said floodplains in violation of any local, State, or federal regulation, including water quality regulations."

    Policy 1.1.8: "'Figure 27: 100 - Year Floodprone Areas' shall be adopted as Future Land Use Plan Map 5."

    Policy 1.3.2: "'Figure 5: General Soil Associations In Sarasota County' shall be adopted as Future Land Use Plan Map 4."

69. RU-5 also adds Environment Policy 5.8.2:

    
    

    Floodplain functions shall be protected by application of the Land Development Regulations (Ordinance No. 81-12, as amended) and Goals, Objectives, and Policies of the Public Facilities and Future Land Use Plans.

    
    

70. RU-5 adds Public Facilities Policy 3.2.8:

    
    

    New development in the 100-year floodplains shall be consistent with the Goals, Objectives and Policies of the Environment, Public Facilities, and Future Land Use Plans.

    
    

71. By virtue of the RU-5 amendments, which use the best available data (the FEMA FIRM) and appropriate analysis, the Apoxsee now depicts the floodprone areas in the County and plans appropriately for their protection. It is at least fairly debatable that the plan provisions are internally consistent.

    
    

    1. Septic Tanks.--

       
       

72. In part, the Recommended Order adopted in the Hiss Final Order found:

    
    

    1. A similar lack of coordination exists with respect to the unrestricted use of septic tanks in Urban areas. The Supportive Material discloses "chronic" septic tank failures in areas south of the City of Sarasota, south of

       Venice, and in the Englewood area at the southern tip of the County on the coast. The last area

       is one of the few areas remaining near the coast with significant amounts of vacant, unplatted land. Each of the three areas is adjacent to estuarine waters. The Supportive Material cautions that, without centralized sewer in the Englewood area, the County's last remaining shellfish harvesting area, which is in Lemon Bay, is threatened. The Englewood area also includes wellfields that draw upon the

       surficial aquifer, which is highly susceptible to contamination in this region.

    2. Failing to coordinate future land uses with topography, soil conditions, and availability of facilities and services, the plan allows

       the unrestricted use of septic tanks in these critical Urban areas. Promises to study the problem, prioritize areas for centralized hookup, and in the meantime "discourage" the use of

       on-site sewage disposal systems offer little in the face of chronic failures of on-site sewage disposal systems and the absence from Table 80 of any expenditures for a centralized wastewater treatment system.

    3. Sarasota Exhibit 38, which is the 1986 Englewood Sector Plan, illustrates, in its discussion of septic tanks, the

       historic lack of coordination between future land uses and topography, soil conditions,

       and the availability of facilities and services. The Sector Plan notes that the soils of the majority of undeveloped lands in the Englewood area are poorly drained with less than two feet between the surface level and the groundwater table. A 1970 study by the County Health Department concluded: "Based on test results

       it would appear that Englewood has already reached the point where further development without adequate centralized sewerage facilities will lead to increased problems with regard to fecal pollution of ditches and waterways."

       [Fn. 30--The Sector Plan mentions various requirements imposed by the County that, if incorporated into the plan, would help coordinate future land uses with topography, soil conditions, and availability of facilities and services.

       County Ordinance 81-12 prohibits septic tanks within 100 feet of a 25-year floodplain unless the lot is at least five acres. The same

       ordinance reportedly requires that "the groundwater table be maintained at not less than forty-eight (48 inches) [apparently from the bottom of the drainfield]." Sector Plan, p. VI-4. Also, the County requires hookup to centralized wastewater systems for all new residential subdivisions

       within one-quarter mile of an existing sewer line, although this requirement can be waived. Id. at pp. VI-4 and VI-5.

       Finding insufficient septic-tank restrictions imposed by the Department of Health and Rehabilitative Services, the County has adopted several ordinances regulating on-site sewage disposal systems. Plan, p. 166. Ordinances

       83-14, 83-83, and 86-03 detail these requirements, but Appendix D, 2 does not describe them in

       much detail. More important, the restrictions contained in all of these ordinances did not find their way into the operative provisions of the plan.]

       
       

       Sector Plan, p. VI-4.

       
       

    4. In the context of a plan that allows unrestricted use of septic tanks anywhere in the Urban area, coordination is not achieved by a plan provision requiring "reasonable assurance" that development proposals within the watersheds of existing public potable surface waters (i.e., the upper Myakka River, both Myakka Lakes, and Big Slough) will not "degrade the quality of such water." Nor is coordination achieved by a provision offering the general assurance of protection and conservation of surface water and groundwater

       resources, or another provision promising the adoption of land development regulations to specify "design standards" in environmentally significant/sensitive areas like watersheds and water recharge areas.

    5. No plan provisions guide the review of specific development proposals. The plan contains no performance or design standards or any requirements to guide the preparation of such standards. [Fn. omitted.] The vague provisions governing the use of septic tanks in the Urban area do not provide, in the

    plan, a meaningful basis upon which to coordinate, in the plan, future land uses with topography, soil conditions, and availability of facilities and services.

    
    

73. In part, the Recommended Order adopted in the Hiss Final Order concluded:

    
    

    97. Based on the ultimate findings of fact contained in Paragraphs 390 et seq., the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of an objective to coordinate future land uses with topography, soil conditions,

    and the availability of facilities and services, with respect to floodplains and the unrestricted use of septic tanks in the Urban area.

    
    

74. Besides the provisions already mentioned in connection with floodplain delineation and protection, the Hiss Final Order required the following Remedial Action pertinent to septic tanks:

    
    

    1. . . .. The Public Facilities Element, Future Land Use Element, and other appropriate elements must contain objectives, with principles, guidelines and standards, to coordinate future land uses with topography, soil conditions,

       and available facilites and services, with respect to both floodplain protection and the use of septic tanks.

       
       

    2. The County shall amend Policy 1.1.2 and add or amend other appropriate objectives

    and policies in the Public Facilities Plan, as follows 8/:

    
    

    * * * Policy 3.2.2

    The County shall prohibit the installation of septic tanks in areas designated urban on the Future Land Use Plan Map Series, unless the installation and use shall not adversely affect the quality of groundwater or surface water

    or adversely affect the natural function of floodplains; further, the County shall adopt regulations which, to the maximum extent permitted by law, mandate hookup of existing as well as new development to a centralized wastewater treatment system.

    
    

75. RU-5 amends Public Facilities Policy 3.2.2 to provide:

    
    

    The County shall prohibit the installation of septic tanks in areas designated Urban and Barrier Island on the Future Land Use Plan Map Series, unless the installation and use shall not adversely affect the quality of groundwater or surface water or adversely affect the natural function of floodplains

    as required by the provisions of the County Land Development Regulations (Ordinance No. 81-12, as amended); Ordinance No. 83-83,

    regulating design, construction, installation, utilization, operation, maintenance and repair of individual on-site sewage disposal systems, as amended; and any more stringent regulations applicable. Further, the County shall revise as necessary or adopt regulations which, to the maximum extent permitted by law, mandate hookup of existing as well as new development to a centralized wastewater treatment system, when available.

    
    

76. The County has admitted, for purposes of effectuating a settlement, that Public Facilities Policy 3.1.2 is not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. By the Stipulation, the County agrees to further amend Public Facilities Policy

    3.2.2 by amending the last sentence to read:

    
    

    Further, the County shall require that all buildings served by on-site sewage disposal systems, except approved on-site greywater systems, connect to a publicly owned or investor-owned sewerage system within one year of notification by the County that such a system is available as defined in Chapter 10D-6.042(7), F.A.C. The County shall establish procedures for the notification of sewer availability.

    
    

77. RU-5 also amends Public Facilities Policy 3.2.5 to make clear that the requirement for compliance with federal, state and local permit laws extends to individual on-site systems. It also provides:

    
    

    Soil surveys shall be required for septic tank permits. No individual on-site systems shall be permitted where soil conditions indicate that the system would not function without degrading water quality or where land alterations necessary to accommodate

    the system would interfere with drainage or floodplain functions.

78. RU-5 also amends Public Facilities Policy 3.2.9 to provide:

    
    

    By 1994, the County shall begin implementation of its wastewater resource management program to be completed by 2020. The comprehensive

    plan, including the Captial Improvements Element, shall be amended by 1994 to reflect implementation of the program. Priority shall be given to providing centralized service to areas experiencing septic tank failure and areas where water quality has been adversely affected by current disposal methods.

    
    

79. RU-5 added Environment Policy 5.8.3:

    
    

    Septic tanks shall not adversely affect water quality in accordance with Ordinance No.

    83-83 and goals, objectives and policies of

    the Public Facilities and Future Land Use Plans.

    
    

80. The vast majority of septic tanks in the County were installed prior to the adoption of increasingly stringent County regulations during the 1970s and 1980s. Since the early 1980s, there have been virtually no subdivisions approved for septic tanks in urban areas. With one seldom-used exception, all urban subdivisions (densities greater than one dwelling unit per acre) are required to have central sewerage facilities. (The exception, for subdivisions of half-acre lots where central water is provided, has proven not to be economically feasible for the developer in most cases.) Virtually all new subdivisions are being connected to large franchised systems.

    
    

81. Consistent with Public Facilities Policies 3.2.2 and 3.2.5 and FLUE Policy 1.1.6, current regulations already provide that no septic tanks or drainfields are permitted within 100 feet of the 25-year portion of the 100-year floodplain.

    
    

82. Under current County regulations, all lots are required to meet the County standards. When a septic tank system fails, the property owner is required to upgrade the system to the current county standards to the maximum extent physically possible on the property.

    
    

83. Apoxsee's Capital Improvements Element provides for the expenditure of

    $3,403,000 for expansion of the County-owned centralized sewerage system. The County Health Department is currently developing a priority list for the extension of central sewerage systems into the older subdivisions in the County which are experienceing septic tank system failures due to the age of the systems. Funding for the extension of central sewerage into septic tank subdivisions is awaiting completion and approval of the priority list and an estimate of the costs. The timing of funding and implementation under RU-5 is reasonable and is supported by the best available data and appropriate analysis.

    
    

84. Apoxsee specifically coordinates the density of urban development with central water and sewer service through FLUE Policies 1.7.2 and 1.7.3, as well as the application of the Urban Area Residential Checklist and the Urban Area Residential Density Matrix, which substantially reduces urban density when central water and sewer service are not provided.

    1. Potable Water Wellfields.--

       
       

85. In part, the Recommended Order adopted in the Hiss Final Order found:

    
    

    242. The plan contains provisions conserving potable water and recharge areas. In the Public Facilities Element, for instance,

    Objective 3.1 is "[t]o establish a

    program of identifying and protecting existing and potential potable water supply sources." Policy 3.1.1 speaks of the adoption of a wellhead protection program by 1990, although this promise is nullified by the condition that the adoption of such a program is "subject to engineering studies and future deliberations and considerations."

    
    

    * * *

    
    

    1. Wellfields receive little direct protection in the plan. Objective 3.1 of

       the Public Facilities Element is "[t]o establish a program of identifying and protecting existing and potential potable water supply sources."

       As the language of this objective suggests,

       no such program exists, and the ensuing policies do little, if anything, in identifying implementation activities designed to achieve this objective.

       
       

    2. As already noted, Policy 3.1.1 states that the County will "ensure adequate protection for potable water supply systems," as well as recharge areas, "by initiating efforts to prepare and implement a wellhead protection program by 1990, subject to engineering studies and future deliberations and considerations."

    
    

    * * *

    
    

    1. Important protection of waterwells is derived from general provisions applicable to groundwater and potable water. Provisions governing groundwater have been discussed in connection with groundwater recharge. Provisions protecting potable water protect wellfields to the extent that groundwater provides potable water.

       
       

    2. For instance, Policy 5.3.2 of the Environment Element provides that the County shall implement water conservation measures. Measures to conserve water include the use of wastewater or stormwater runoff as a potable water source, as envisioned by Policies 2.1.4 and 2.1.5 of the Public Facilities Element.

    Likewise, Policy 1.2.6 promises that the County "will continue to explore ... water conservation strategies in cooperation with regional water supply authorities and other local entities." Water conservation measures will obviously protect wellfields by reducing demand and the possibility of overpumping.

    
    

    * * *

    
    

    371. It is fairly debatable that the FLUM is consistent with criteria of the depiction of waterwells . . ..

    
    

    * * *

    
    

    1. It is fairly debatable that the plan is consistent with criteria of objectives and

       policies addressing the conservation of potable water, protection of natural groundwater recharge, and protection of waterwells. . . .

       
       

    2. . . .. With one exception, it is fairly debatable that the plan is consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands. To the exclusion of fair debate, the plan is not consistent with the latter two criteria as applied to the designation of the entire Walton Tract as Public Resource Lands, despite the intended use of part of the tract as a major landfill.

    
    

    * * *

    
    

    385. It is fairly debatable that the plan

    is consistent with the criterion of an objective addressing the protection of water quality by the restriction of activities known to affect adversely the quality and quantity of identified water sources, including waterwells. The requisite protection is attained by policies protecting surface water and groundwater and

    conserving potable water, such as by investigating the use of treated wastewater effluent and stormwater runoff as potable water sources.

    
    

    * * *

    
    

    387. It is fairly debatable that the plan is consistent with criteria of objectives to ensure the protection of waterwells . . ..

    
    

86. In part, the Recommended Order adopted in the Hiss Final Order concluded:

    1. Based on the ultimate findings of fact contained in Paragraph 371, the plan is consistent with criteria of the depiction on the FLUM of waterwells . . ..

       
       

    2. There are no cones of influence that are required to be depicted on the FLUM because

    the Southwest Florida Water Management District has not identified any cones of influence in the County. According to Rule 9J-5.003(18),

    a "cone of influence" is "an area around one or more major waterwells the boundary of which is determined by the government agency having specific statutory authority to make such a determination based on groundwater travel or drawdown depth."

    
    

    * * *

    
    

    91. Rule 9J-5.013(2)(c)1. requires that the plan contain "policies address[ing]

    implementation activities for the":

    
    

    1. Protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and waterwells[.]

    
    

    92. Based on the ultimate findings of fact contained in Paragraphs 380 and 385-386, the plan is consistent with criteria of objectives addressing the conservation of potable water and protection of natural groundwater recharge areas and policies addressing implementation activities for the protection of water quality by restricting activities known to affect adversely sources of potable water.

    
    

    * * *

    
    

    95. Based on the ultimate findings of fact contained in Paragraph 387, the plan is consistent with criteria of objectives to ensure the protection of waterwells . . ..

    
    

87. The only pertinent thing RU-5 did with respect to potable waterwells was to amend Public Facilities Policy 3.1.1 to indicate that, whereas the 1989 plan stated that County was "initiating efforts to prepare and implement a wellhead protection program by 1990," by the time of RU-5, the plans were to "continu[e] efforts to immediately implement a wellhead protection program."

    
    

88. The delay in implementation of the program was predicated on County staff's advice:

    
    

    The extension of the deadline . . . allows for the need to establish base line data and

    because of the extensive requirements for monitoring such a program. . . .

    
    

    In the face of this explanation, the intervenors did not prove that the extension of the deadline was not supported by the best available data and appropriate analysis.

89. RU-5 also added Public Facilities Policy 3.1.2 Sarasota County will continue working in

    close cooperation with the Southwest Florida Water Management District and other professional regulatory agencies to develop and evaluate the feasibility of adopting a

    model wellhead protection ordinance for major public supply wells and well fields shown on the Future Land Use Map Series. This effort may include requests to the SWFWMD for cooperative funding or technical assistance to conduct an inventory and assessment of existing and potential public supply wells areas and conditions.

    
    

    and Public Facilities Policy 3.1.3

    
    

    For existing and proposed public supply wells shown on the Future Land Use Map or Map Series, a zone of protection shall be delineated within which land use will be regulated to protect public water supply resources, consistent with the wellhead protection program. Where cones of influence have been delineated, the zone of protection shall be consistent therewith.

    Where cones of influence have not been determined, Sarasota County shall use its best available data to consider delineating interim protection zones

    of between 200 feet to 400 feet in radius, depending on variables including, but not limited to, soil characteristics and surrounding uses.

    
    

90. When DCA found fault with the absence of an explicit time frame for implementation of the wellhead protection program in Public Facilities Policy 3.1.2, the County admitted, for purposes of effectuating a settlement, that Public Facilities Policy 3.1.2 was not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County.

    
    

91. The settlement Stipulation amends the first sentence of Public Facilities Policies 3.1.2 as follows:

    
    

    Sarasota County will continue working in close cooperation with the Southwest Flroida Water Management District and other professional regulatory agencies to develop a model wellhead protection ordinance, culminating in Sarasota County adopting a wellhead protection ordinance during fiscal year 1992 for major public supply wells and well fields shown on the Future Land

    Use Map Series.

    
    

    The Department agrees that this amendment would bring RU-5 into compliance.

    
    

92. The balance of the intervenors' criticism of the potable waterwell protection amendments in RU-5 are foreclosed by the Hiss Final Order, as recited above.

    
    

    1. Wetlands Mitigation.--

    
    

93. In part, the Recommended Order adopted in the Hiss Final Order found:

    
    

    266. The mitigation requirement applicable to Marshes, Sloughs, or Wet Prairies addresses

    the habitat function of these wetlands. However, this requirement does not address the critical drainage function of those wetlands altered because "no other reasonable alternative exists." The drainage function is especially pertinent to Marshes and Sloughs, which are contiguous wetlands. Additional findings concerning the treatment of wetlands are at Paragraph 315 below.

    [Fn. 17 omitted.]

    
    

    * * *

    
    

    315. Ignoring alterations to wetlands causing the loss of drainage functions, the mitigation requirement fails even to ensure the protection of the habitat function of wetlands, whose loss triggers the obligation to mitigate. The mitigation provision leaves to the developer

    the task of monitoring the success of the artificial wetlands created to replace converted wetlands. Assuming that developer monitoring may suffice with County supervision, the plan supplies no standards by which to evaluate a mitigation project or sanctions by which to enforce a mitigation agreement. These short- comings undermine the protection afforded Swamps, Marshes, and Wet Prairies. Testimony

    established that many wetland-mitigation projects fail, largely due to the absence of performance standards and failure to monitor.

    
    

94. The Hiss Final Order contains no conclusions of law regarding wetlands mitigation. However, for reasons not readily apparent from the Final Order, the Remedial Action 13 does address wetland mitigation by requiring the County to "amend the Freshwater Wetlands section 'Principles for Development Proposals in Native Habitats.'"

    
    

95. In most respects, RU-5 follows the specified remedial action. In those respects, the intervenors are foreclosed from challenging RU-5's amendment to the "Principles for Evaluating Development Proposals in Native Habitats."

96. In some respects, there are difference between the specified remedial action and RU-5. The Remedial Action in the Hiss Final Order requires that the "Principles for Development Proposals in Native Habitats," Section VI.A.2.e., be amended to read:

    
    

    All alterations in wetlands which result in a loss of wetlands shall be mitigated on at least a two-to-one basis for wooded wetlands. Mitigated wetlands shall restore the type, nature and function of the altered wetland.

    A wetland mitigation, maintenance, and monitoring plan based on best available technology shall be submitted for review and approval by the County prior to or concurrent with the preliminary plan or site and development plan development review process. The success of mitgation shall be monitored by the applicant or his designees and shall also be subject to monitoring and enforcement by the County. Except as otherwise authorized herein, wetlands shall not be filled, drained, dredged, or converted to lakes or

    borrow pits.

    
    

    Instead, RU-5 amends the "Principles for Evaluating Development Proposals in Native Habitats," Section VI.A.2.e., to read:

    
    

    All alterations in wetlands which result in a loss of habitat, shall be mitigated in accordance with performance standards adopted by the Board of County Commissioners. These performance standards shall ensure that the

    recreated wetlands provide values and functions equal to or, particularly in the case of an impacted or degraded wetland, greater than those of the wetland qualifying for alteration. Reasonable assurance shall be provided such that the recreated wetland will exhibit the defined environmental function, nature, and, where hydrologically feasible, similar type

    of the altered wetland. Mitigation ratios shall be as follows:

    
    

    1. One-to-one for herbaceous wetlands and two-to-one for wooded wetlands, in accordance with Level I performance standards; or

       
       

    2. Two-to-one for herbaceous wetlands and four-to-one for wooded wetlands in accordance with Level II performance standards.

       
       

       General Requirements for Level I and Level II Performance Standards: For all projects, a wetland mitigation, maintenance, and monitoring plan based on best available technology shall be submitted for review and approval by the

       County prior to or concurrent with the preliminary plan or site and development plan development

       review process. All federally listed threatened and endangered plant species shall be preserved, protected or relocated pursuant to a transplantation program to be implemented

       prior to construction authorization. The success of mitgation shall be monitored by the Applicant or his designees and shall also

       be subject to monitoring and enforcement by the County. Except as otherwise authorized herein, wetlands shall not be filled, drained, dredged, or converted to lakes or borrow pits. Specific performance standards shall be contained in

       the County's Land Development Regulations (Ord. 81-12, as amended).

       
       

       Criteria for Level I Performance Standards:

       Level I standards shall include the following: the diversity of plants in the wetlands to be impacted shall be approximated in the recreated wetland; the habitat value of the recreated wetland shall approximate or exceed that of

       the wetland to be impacted; similar substrate shall be provided in the recreated wetland; success criteria (e.g., plant survival, animal diversity, hydroperiods) shall be established based on the best availabale technology, and shall be met before monitoring can be completed; and a hydroperiod maintenance plan, acceptable to the County, shall be prepared.

       
       

       Mitigation at ratios as described in (1), above, and based on success criteria for Level I performance standards may be provided

       prior to the alteration of any wetland qualifying for alteration. Mitigation with Level I performance standards may be provided in a defined area that

       is part of an environmental system or corridor that can enhance wildlife values and functions. Off-site wetland mitigation shall be allowed only where on-site mitigation or preservation is not feasible, as determined by the County.

       
       

       Criteria for Level II Performance Standards:

       Level II standards shall include the following: recreated wetlands shall be planted with at least three different native species at specific

       distances between plants; mulching may be used in lieu of planting; a hydroperiod maintenance plan, acceptable to the County, shall be prepared; and monitoring of success shall be required for at least three years.

       
       

97. The County has admitted, for purposes of effectuating a settlement, that Section VI.A.2.e. of the "Principles for Evaluating Development Proposals in Native Habitats" is not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. Under the settlement Stipulation, the County has agreed to revise Section VI.A.2.e. to

    specify that the "federally listed threatened and endangered plant species" to be preserved includes "those species that are listed or are C1 candidates for listing by the U.S. Fish and Wildlife Service; listed as threatened or endangered by the Florida Department of Agriculture and [C]onsumer [S]ervices pursuant to the Preservation of Native Flora Act, Section 581.185, Floirida Statutes; and listed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora."

    
    

98. There is no basis in the record for the intervenors contentions that RU-5, as amended by settlement Stipulation between the DCA and the County, is contrary to the required Remedial Action or inconsistent with the Growth Management Act. 9/

CONCLUSIONS OF LAW

99. Section 163.3184(10), Fla. Stat. (1991), provides: PROCESS IF LOCAL PLAN OR AMENDMENT IS NOT IN

COMPLIANCE.--

1. If the state land planning agency issues a notice of intent to find the compre-

   hensive plan or plan amendment not in complianice with this act, the notice of intent shall be forwarded to the Division of Administrative Hearings of the Department of Administration, which shall conduct a proceeding under s. 120.57 in the affected local jurisdiction. The parties to the proceeding shall be the state land planning agency, the affected local government, and any affected person who intervenes. In the proceeding, the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance. The local government's determination that elements of its plans are related to and consistent with each other shall be sustained if the determination

   is fairly debatable.

   
   

   1. When a notice of intent to find the comprehensive plan or plan amendment in compliance has been issued, an "affected person" may initiate a proceeding under Section 163.3184(9). Section 163.3184(9) provides in pertinent part:

      
      

      In this proceeding the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable.

      
      

   2. The DCA initiated this case under the provisions of Section 163.3184(10), Fla. Stat. (1991). However, before the case went to hearing, the DCA and the County entered into a Stipulation, agreeing that parts of RU-5 are

      in compliance and parts are not in compliance and also agreeing to the remedial actions necessary to bring RU-5 into compliance. The intervenors did not so stipulate, and all parties agreed that the burden of proof set out in Section 163.3184(10), not the heavier burden set out in Section 163.3184(9), should be imposed on the intervenors in this case. 10/

      
      

   3. Hiss and Manasota-88 have contended in this case that remedial amendments such as the RU-5 amendments are not permissible until there has been a final order determining that the plan being amended is "in compliance." They rely on Section 163.3164(3), Fla. Stat. (1991), which defines "comprehensive plan" to mean "a plan that meets the requirements of ss. 163.3177 and 163.3178." 11/ They have argued that, since the Hiss Final Order determined the County's plan to be "not in compliance," the County has no "comprehensive plan" to be amended, and that the County is required to resubmit an entire plan.

      
      

   4. After exhaustive administrative proceedings, the Administration Commission found large parts of the County's plan to be "consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C." Section 163.3184(1)(b), Fla. Stat. (1991). There is no indication that the Administration Commission intended to require the County to resubmit an entire plan, or intended to allow either parties to the prior proceeding (such as Hiss), or those who did not avail themselves of the prior proceeding (such as Manasota-88), to reopen the determinations of consistency.

      
      

   5. Nor do the applicable statutes require the County to resubmit an entire plan, or allow the parties to this proceeding to reopen the determinations of consistency contained in the Hiss Final Order. Section 163.3187(1), Fla. Stat. (1991), refers to amendments "to comprehensive plans adopted pursuant to this part." As stated, Section 163.3164(3) defines "comprehensive plan" to mean "a plan that meets the requirements of ss. 163.3177 and 163.3178." By the terms of the statutes, such a "comprehensive plan" need not necessarily be a plan that is "in compliance," as defined by Section 163.3184(1)(a), Fla. Stat. (1991). Also, according to Section 163.3184(7), adoption of the comprehensive plan occurs at a point in time before the initiation of proceedings under Section 163.3184(9) or (10). 12/

      
      

   6. Hiss and Manasota-88 also have relied on the Order of Remand, DCA v. Lee County, 90:164 F.A.L.R. (Admin. Comm'n 1990), for the proposition that the RU-5 amendments necessarily reopen the determinations of consistency contained in the Hiss Final Order. But, in DCA v. Lee County, the Administration Commission was remanding a recommended order that was "partial in nature" and was requiring the local plan to "be judged as a whole." In this case, the Hiss Final Order already has judged the Sarasota County plan "as a whole." DCA v. Lee County does not require that it be readjudicated.

      
      

   7. Alternatively, Hiss and Manasota-88 have maintained in this proceeding that the Hiss Final Order, as well as the Growth Management Act, require the determination, whether the remedial action taken by the County in response to Final Order indeed complies with the Final Order, to be made within the framework of the Section 163.3184 proceedings that would result from those remedial actions (namely, e.g., in the pending proceeding). Essentially, they contend that, under the Growth Management Act, this proceeding is necessarily part of the process of enforcement of the Hiss Final Order. But review of the Final Order does not reveal a clear intention to that effect and does not provide a clear basis for trying, per se, in this case, the issue whether RU-5 complies with the remedial action specified in the Hiss Final Order.

   8. Although the Hiss Final Order recognizes and contemplates that any remedial action taken by the County will be subject to compliance proceedings, such as this one, under Section 163.3184, Fla. Stat. (1991), it also sets up its own, separate mechanism for its enforcement. Hiss Final Order, "Remedial Action," Paragraph 15. Under that mechanism, the DCA is to review all remedial action taken by the County (not just the RU-5 amendments) and forward a recommendation to the Administration Commission no later than June 1, 1992. The Administration Commission is to act on the recommendation. It would appear that the Administration Commission could take any action authorized by Section 163.3184(11), Fla. Stat. (1991). For example: it could make a final decision whether the County plan, as amended, is "in compliance," as defined by Section 163.3184(1)(a), Fla. Stat. (1991); it could revisit the question of sanctions; it might extend the time for completion of remedial action. Regardless how the Administration Commission acts in the context of the enforcement mechanism set up in the Hiss Final Order, that action is separate from this proceeding.

      
      

   9. Nor does the Growth Management Act provide a basis for trying, per se, in this case, the issue whether RU-5 complies with the remedial action specified in the Hiss Final Order. Section 163.3184(1)(b), Fla. Stat. (1991), states:

      
      

      "In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule

      9J-5, F.A.C., where such rule is not inconsis- tent with chapter 163, part II.

      
      

      Strictly speaking, compliance with remedial actions specified in the Administration Commission's Hiss Final Order is not part of the statutory definition of "in compliance" contained in Section 163.3184(1)(b), Fla. Stat. (1991).

      
      

   10. Hiss and Manasota-88 also have contended that, unless the question, whether the remedial action taken by the County in response to Hiss Final Order indeed complies with the Final Order, is made within the framework of the Section 163.3184 proceedings that would result from those remedial actions (namely, e.g., in the pending proceeding), they and others will be deprived of statutory and constitutional procedural due process rights to challenge the County's remedial actions. But their contention seems to ignore Section 163.3184(9) and (10), Fla. Stat. (1991), which gives any "affected person," as defined by Section 163.3184(1)(a), the right to participate in proceedings, such as this one, arising out of County remedial action. Besides, the question who shall have the right to participate in the process the Hiss Final Order establishes for its enforcement is a matter for the Administration Commission to decide in the context of those proceedings.

       
       

   11. While, strictly speaking, compliance with remedial actions specified in the Administration Commission's Hiss Final Order is not part of the statutory definition of "in compliance" contained in Section 163.3184(1)(b), Fla. Stat. (1991), the parties to the formal administrative proceeding that resulted in the Hiss Final Order are bound by principles of res judicata and collateral estoppel. In addition, how the RU-5 amendments compare to the Hiss Final Order is directly relevant to the determination of the issue whether the RU-5 amendments are "in compliance," as defined by Section 163.3184(1)(b), Fla. Stat. (1991). Simply put, if the RU-5 amendments do not pass muster as measured

       against the Hiss Final Order, they also will not be "in compliance," as defined by Section 163.3184(1)(b), Fla. Stat. (1991).

       
       

   12. Not only Hiss, but also Manasota-88, as well as all others not a party to the proceeding that resulted in the Hiss Final Order, also are bound by it. As previously stated, only "affected persons" can petition under Section 163.3184(9) for reversal of DCA's intention to find a comprehensive plan or plan amendment in compliance, and then only if they petition with 21 days of DCA's notice of intent. Those who do not participate in such a proceeding are bound by its results.

       
       

   13. As reflected in the Findings of Fact, many of the issues attempted to be raised by the intervenors in this proceeding are foreclosed by the Hiss Final Order under principles of res judicata and collateral estoppel. Other issues raised by the intervenors in this proceeding are determined by the findings made and conclusions reached in the Hiss Final Order, under the same principles.

       
       

   14. As for the remaining issues, as reflected in the Findings of Fact, and in the rulings on their proposed findings of fact contained in the attached Appendix to Recommended Order, the intervenors did not prove by a preponderance of the evidence that RU-5 is inconsistent with the requirements of F.S. ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C. Nor did the intervenors prove beyond fair debate that the provisions of RU-5 are not related to and consistent with each other, and with the rest of Apoxsee.

       
       

   15. In light of the arguments made and positions taken by the intervenors in this proceeding, it is appropriate to observe generally that the Growth Management Act is about planning for growth, not permitting growth. It is not necessary, to pass on the appropriateness of a local government's plan for growth, to try, in one growth management proceeding, all of the various regulatory permitting issues that ultimately will face proponents of growth within the parameters of the comprehensive plan. For example, it is not necessary to conduct, in advance, the Department of Environmental Regulation proceedings for permitting a landfill on the Walton Tract before a determination can be made that it is appropriate for the County to plan to initiate those proceedings by applying for a permit. One gets the sense that this is what the intervenors would have done in this case.

       
       

   16. It also is not role of the hearing officer in these proceedings to determine what the hearing officer thinks is the best plan the local government could have devised. Rather, the local government's plan is for the local government to determine, so long as the plan is "in compliance," as defined by Section 163.3184(1)(b), Fla. Stat. (1991).

       
       

   17. Specific comment also is in order on the intervenors' view of the requirements that a comprehensive plan must be supported by data and analysis and be internally consistent. At times, their arguments seem to be based on the proposition that "data and analysis" requires a plan to be found not "in compliance" if it can be found that more analysis could have been done. This view is not supported by the Growth Management Act.

       
       

   18. Section 163.3177, Fla. Stat. (1991), provides in pertinent part:

       
       

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

          Surveys and studies utilized in the preparation of the comprehensive plan shall not be deemed a part of the comprehensive plan unless adopted as a part of it.

          
          

       2. The rule [9J-5] shall include criteria for determining whether:

       
       

       * * *

       
       

2. Other elements of the comprehensive plan are related to and consistent with each other.

1. F.A.C. Rule 9J

   
   

   (2) DATA AND ANALYSES REQUIREMENTS.

   
   

   1. All goals, objectives, policies, standards, findings and conclusions within

      the comprehensive plan and its support documents shall be based upon relevant and appropriate data. Data or summaries thereof shall not be subject to the compliance review process.

      However, the Department will review each comprehensive plan for the purpose of determining whether the plan is based on the data described

      in this Chapter and whether the data were collected and applied in a professionally acceptable manner.

      All tables, charts, graphs, maps, figures and data sources, and their limitations shall be clearly described where such data occur in the above documents.

      
      

   2. This Chapter shall not be construed to require original data collection by local government; however, local governments are encouraged to utilize any original data necessary to update or refine the local government compre- hensive plan data base so long as methodologies are professionally accepted.

      
      

   3. Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate methodologies shall be clearly described or referenced and shall meet profes- sionally accepted standards for such methodologies.

   
   

2. "Data and analysis" does not require that a plan be found not to be "in compliance" if it can be found that more analysis could have been done.

   Rather, a local government's analysis is sufficient if "the data is . . . applied in a professionally acceptable manner." F.A.C. Rule 9J "[A]ugmentation, updates, or special studies or surveys" are required only if "necessary." F.A.C. Rule 9J

   the local government that "appropriate methodologies . . . be clearly described or referenced" and that they "meet professionally accepted standards for such methodologies." Id. Sarasota County has met these requirements.

   
   

3. The intervenors take the position in this proceeding, rightly, that the best available data and appropriate analysis in a plan amendment proceeding can include parts of the plan being amended (although they sometimes overreach in their argument of what parts of the plan being amended constitute data and analysis). However, it is observed that they then argue, where it suits them, that RU-5 is not based on data and analysis because of conflicts between the plan amendments and the provisions of the plan being amended. Specifically, they do this in connection with the FLUE and FLUM amendments respecting the Walton Tract, arguing that the redesignation of part of the Walton Tract from Public Resource Land to Government Use is not supported by the data and analysis in the 1989 plan, to the extent that the 1989 plan had designated all of the Walton Tract as Public Resource Land. Extended to its logical conclusion, the intervenors' legal argument would preclude plans from ever being amended because the plan amendment would not be supported by the data and analysis contained in the part of the plan being amended.

   
   

4. With respect to the intervenors' arguments that RU-5 is internally inconsistent in various particulars, Section 163.3177(2), Fla. Stat. (1991), provides:

   
   

   Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent, and the comprehensive plan shall be economically feasible.

   
   

5. The Recommended Order adopted in the Hiss Final Order concluded in part:

   
   

   12. Section 163.3177(10)(a) defines "consistency" solely for the purpose of deter- mining whether the plan is consistent with the state and regional plans. For these consistency determinations, the plan is consistent if it

   is "not in conflict with" the relevant plan and "take[s] action in the direction of realizing goals or policies" of the relevant plan. In making these determinations, the state or regional plan "shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan . . .." Id.

   
   

   * * *

   
   

   14. The statutory definition of consistency with state and regional plans must be modified

   when applied to questions of internal consistency. The "not in conflict with" portion of the definition is suitable. . . . However, the remainder of the statutory definition is not applicable to internal consistency determinations. There is no reason to insist that all objectives and policies of a plan "take action in the direction of realizing" the other objectives

   and policies of the same plan. The

   meaningful question is whether the two objectives are in conflict with each other; if not, they are coordinated, related, and consistent.

   
   

6. As already indicated, even under the lighter burden of proof in a Section 163.3184(10) proceeding: "The local government's determination that elements of its plans are related to and consistent with each other shall be sustained if the determination is fairly debatable." The intervenors did not prove that RU-5 is internally inconsistent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order that: (1) Sarasota County's RU-5 amendments to its comprehensive plan are not in compliance, but only for the reasons set out in the settlement Stipulation between the County and the DCA; (2) that the RU-5 amendments are otherwise in compliance; and (3) that the County be required to take the remedial action agreed to in the settlement Stipulation.

RECOMMENDED this 31 day of August, 1992, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31 day of August, 1992.

ENDNOTES

1/ This was before the enactment of Chapter 92-129, Laws of Florida (1992).

2/ Later, the parties filed an Amended Pre-Hearing Stipulation which modified the witness and exhibit lists only.

3/ Notwithstanding this interlocutory ruling, this Recommended Order ultimately rules that parts of the intervenors' proposed recommended orders are immaterial

and irrelevant or foreclosed under principles of res judicata and collateral estoppel. See Conclusions of Law, below.

4/ The portion of the Hiss Final Order quoted here is relevant to the general issue of res judicata. Other portions of the Final Order relevant due to the application of res judicata principles to specific issues raised by the intervenors are quoted elsewhere in these Findings of Fact.

5/ The borrow pit was sited partially within the floodplain of the Cowpen Slough in order to avoid impacting an adjacent wetland.

6/ The subject of septic tanks in general is treated in the next section (E.) of these Findings.

7/ The subject of wetlands mitigation in general is treated in the section (G.) of these Findings.

8/ See Finding of Fact 3, above, for the text of the footnote that appears at this point in the Hiss Final Order.

9/ It was not considered necessary to address specifically, in these Findings of Fact, some issues raised by the intervenors. Instead, those issues are addressed in the form of rulings in the attached Appendix to Recommended Order, Case No. 91-6018GM, rejecting proposed findings of fact.

10/ See Preliminary Statement, above.

11/ Hiss also has cited Section 163.3167(2), Fla. Stat. (1991), which refers to submission of a local government's "complete proposed comprehensive plan or its complete comprehensive plan as proposed to be amended." But that statute is intended to give local governments the option of either preparing a new proposed comprehensive plan for initial submission or submitting a plan already prepared, together with any newly prepared amendments. It is not viewed to prohibit Sarasota County from submitting the RU-5 amendments. See also Section 163.3197, Fla. Stat. (1991).

12/ Section 163.3184(7) provides:

The local government shall transmit 5 copies of the adopted comprehensive plan or, in the case of plan amendments, 5 copies of the element amended and the text of the amendment to the state land planning agency within 5 working days after adoption.

See also Section 163.3184(15), Fla. Stat. (1991).

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6018

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact. 1-4. Accepted but unnecessary.

5-8. Generally accepted and incorporated to the extent not subordinate or unnecessary.

1. Subordinate and unnecessary.

   
   

2. Generally accepted and incorporated to the extent not subordinate or unnecessary.

11-13. Conclusions of law.

14-32. Generally accepted and incorporated to the extent not subordinate or unnecessary.

1. Subordinate and unnecessary.

   
   

2. Conclusions of law.

   
   

3. Generally accepted and incorporated to the extent not subordinate or unnecessary.

   
   

4. In part, accepted and incorporated to the extent not subordinate or unnecessary; in part, conclusion of law.

37-48. Generally accepted and incorporated to the extent not subordinate or unnecessary.

1. Subordinate and unnecessary.

   
   

2. Conclusions of law.

51-60. Generally accepted and incorporated to the extent not subordinate or unnecessary.

1. Subordinate and unnecessary.

   
   

2. Conclusions of law.

63-68. Generally accepted and incorporated to the extent not subordinate or unnecessary.

69. Subordinate and unnecessary.

70-71. Conclusions of law.

72-73. There also is an RU-5 amendment, and compliance with the Hiss Final Order is not the issue in this case, but otherwise accepted and incorporated to the extent not subordinate or unnecessary.

Respondent's Proposed Findings of Fact.

As reflected in the Findings of Fact, the County's Proposed Affirmative Findings of Fact are generally accepted and incorporated except to the extent subordinate or unnecessary.

Hiss' Proposed Findings of Fact.

1-6. Generally accepted factually but largely unnecessary.

7-14. Generally accepted and incorporated to the extent not subordinate or unnecessary.

15-18. Generally accepted factually but largely unnecessary. Some of the available data has been analyzed, and some continues to be analyzed. There is no duty to generate data.

19-20. Rejected as not proven and contrary to facts found. The available data and appropriate analysis was taken into account. Sites determined to be historically, architecturally or archaeologically significant have been included in RU-5. Many sites have not yet been fully evaluated to determine their significance.

21-22. Generally accepted factually but largely unnecessary. See 19-20, above.

1. Conclusion of law.

   
   

2. Cumulative.

   
   

3. Rejected as not proven and contrary to facts found.

   
   

4. Generally accepted factually but unnecessary.

   
   

5. Rejected: conclusion of law; not proven.

28-37. Rejected as not proven. Res judicata and collateral estoppel.

38-65. Largely rejected as foreclosed under principles of res judicata and collateral estoppel. Except for floodplain protection, which is dealt with elsewhere, after exhaustive administrative proceedings, it was determined that the County's plan with respect to soils and minerals was in compliance except for its failure to depict soils and minerals on the FLUM Series. RU-5 adequately depicts general soil associations and minerals on the FLUM Series.

1. Accepted but unnecessary.

   
   

2. Rejected as not proven and contrary to facts found.

68-70. Generally accepted factually but unnecessary.

71. Accepted and incorporated.

72-76. Rejected as not proven and contrary to facts found. 77-80. Irrelevant and unnecessary.

81-83. Rejected as not proven and contrary to facts found. (The entire plan does not have to be reproduced on the face of the FLUM Series.)

84-86. Rejected as not proven and contrary to facts found. Also, irrelevant and unnecessary. (The essence of this complaint seems to be that RU-6 was not in RU-5.)

87. Rejected as not proven and contrary to facts found.

88-91. Cumulative.

92-98. Rejected as not proven and contrary to facts found.

1. Accepted but unnecessary.

   
   

2. Rejected as not proven and contrary to facts found.

   
   

3. Accepted but unnecessary.

   
   

4. Rejected as not proven and contrary to facts found.

   
   

5. Accepted but unnecessary.

   
   

6. Rejected as not proven and contrary to facts found. Also, res judicata and collateral estoppel.

105-124. Quotations from Apoxsee and from the Hiss Final Order and Recommended Order are accepted and incorporated to the extent not subordinate and unnecessary. Otherwise, largely rejected as not proven and contrary to facts found. Also, res judicata and collateral estoppel in part, and in part irrelevant, subordinate and unnecessary.

1. Rejected as not proven and contrary to facts found. (The County completed a master plan in 1987; basin master plans are the next step in managing stormwater.) Also, res judicata and collateral estoppel in part, and in part irrelevant, subordinate and unnecessary.

   
   

2. Accepted and incorporated to the extent not subordinate or unnecessary.

127-137. Rejected as not proven and contrary to facts found. Also, res judicata and collateral estoppel in part, and in part irrelevant, subordinate to facts contrary to those found and unnecessary. Also, conclusions of law and argument. Also, inadequate citation to the testimony and evidence.

138-139. Immaterial to RU-5 case and irrelevant. Res judicata and collateral estoppel.

140. Rejected as not proven and contrary to facts found.

141-152. Immaterial to RU-5 case and irrelevant. Res judicata and collateral estoppel.

153. Unnecessary. RU-5 adequately depicts floodplains and is supported by avaiable data and appropriate analysis.

1. In essence, rejected as not proven and contrary to facts found.

   
   

2. To the extent comprehensible, rejected as not proven.

   
   

3. Conclusion of law and argument.

158-159. Immaterial to RU-5 case and irrelevant. Res judicata and collateral estoppel.

160-162. Rejected as not proven and contrary to facts found. (The County completed a master plan in 1987; basin master plans are the next step in

managing stormwater.) Also, res judicata and collateral estoppel in part, and in part irrelevant, subordinate and unnecessary.

163-165. In part, conclusion of law and argument. In part, rejected as not proven.

166. Rejected as not proven.

167-172. Immaterial to RU-5 case and irrelevant. Res judicata and collateral estoppel.

173. Conclusion of law and argument.

174-178. Rejected as not proven. Also, res judicata and collateral estoppel. RU-5 is supported by available data and appropriate analysis. There is nothing wrong with planning to obtain data not now available and to analyze it. In part, cumulative.

179-180. Generally, accepted factually, but subordinate and unnecessary.

181-190. Except as to the Walton Tract, immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel. As to Walton Tract, cumulative.

191-193. Rejected as not proven and contrary to facts found.

1. Rejected as not proven and speculation.

   
   

2. Accepted but subordinate to facts contrary to those found and unnecessary.

196-200. Generally, accepted factually, but subordinate and unnecessary.

201-203. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel. As to Walton Tract, cumulative.

204. Accepted and incorporated.

205-212. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel. In part (208), speculative.

1. Accepted and incorporated.

   
   

2. Accepted but subordinate and unnecessary. (Much the same could be said about much of Sarasota County.)

   
   

3. Accepted and incorporated to the extent not subordinate or unnecessary.

216-217. Except for the obvious generalized fact that a landfill will have an impact, rejected as to the specifics as not proven and speculation.

218-219. Rejected as not proven. Specific studies on those topics were not performed but these things were studied and taken into account.

220-221. Rejected as not proven. Also, res judicata and collateral estoppel.

222-223. Rejected not proven, irrelevant and unnecessary. (The new measures are now part of the existing plan.)

1. Accepted but not particularly relevant, and unnecessary.

   
   

2. First sentence, accepted and incorporated; second sentence, rejected as contrary to the first.

226-228. Rejected as contrary to facts found. The stipulations speak for themselves.

229-233. Generally accepted and incorporated to the extent not subordinate or unnecessary. (There also is support for the Walton Tract site and opposition to alternative sites.)

234-252. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel.

253-258. Conclusions of law and argument.

259-262. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel.

1. Rejected as not proven. (The study was not an effort to implement GOPs).

   
   

2. Rejected as not proven and contrary to facts found.

   
   

3. Rejected. The objective speaks for itself and meets minimum criteria.

   
   

4. Accepted.

267-270. Rejected as not proven. Res judicata and collateral estoppel.

1. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel.

   
   

2. First two sentences, accepted and incorporated. Rest, rejected as not proven. (The RU-6 change was to accommodate the Walton Tract landfill and Carlton Reserve waterwells.)

   
   

3. Accepted and incorporated.

   
   

4. First sentence, rejected as not proven; second, generally accepted and incorporated (some more "substantial" than others); third, rejected as speculative; fourth and fifth, accepted and incorporated as to some sites, and rejected as to others.

275-277. Conclusions of law.

278-284. Generally accepted factually but subordinate and unnecessary.

1. First sentence, rejected as contrary to the evidence; rest, generally accepted. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel.

   
   

2. Rejected as not proven.

287-289. Generally accepted factually but subordinate and unnecessary. 290-291. Accepted and incorporated.

292-293. Rejected as not proven. Res judicata and collateral estoppel. 294-296. Accepted but subordinate and unnecessary.

297. Accepted but unnecessary.

298-306. Rejected as not proven that RU-5 is not supported by available data and appropriate analysis (300). Otherwise, generally accepted but subordinate and unnecessary.

307. Rejected as not proven that the landfill is inconsistent with protection of the Carlton Reserve well field.

facts contrary to those found, and unnecessary. Also, res judicata and collateral estoppel. As to the RU-5 Pub. Fac. Pol. 3.1.2 time frame, accepted and incorporated.

323-326. Rejected. Res judicata and collateral estoppel. (By definition, when the plan is to implement a program, it has not been implemented yet.)

327-329. Rejected as not proven.

1. Accepted but contrary to facts found, and unnecessary.

   
   

2. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel.

332-333. Rejected as not proven beyond fair debate.

335. Accepted but apparently subordinate and unnecessary. (By definition, when the plan is to implement a program, it has not been implemented yet.)

336-339. Generally, accepted factually but subordinatee and unnecessary.

1. First sentence, rejected as not proven; second, res judicata and collateral estoppel.

   
   

2. Rejected, as they were findings, not conclusions. The findings are incorporated.

342-343. Accepted and incorporated.

1. Accepted but subordinate and unnecessary.

   
   

2. Generally, accepted factually but subordinate and unnecessary.

   
   

3. Accepted and incorporated to the extent not subordinate or unnecessary.

347-350. Generally, accepted factually but subordinate and unnecessary.

351. Accepted and incorporated.

352-355. Generally, accepted factually but subordinate and unnecessary. (Last sentence, irrelevant.)

356. Rejected as not proven. Res judicata and collateral estoppel.

357-358. Accepted but subordinate and unnecessary. Also, res judicata and collateral estoppel.

1. Accepted and incorporated.

   
   

2. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel.

   
   

3. Accepted but subordinate and unnecessary.

   
   

4. Rejected as not proven. Also, res judicata and collateral estoppel.

   
   

5. Accepted but subordinate and unnecessary.

364-367. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel.

1. In part, accepted and incorporated; in part, rejected as not proven and contrary to facts found.

   
   

2. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel.

   
   

3. First sentence, accepted but unnecessary; second, rejected as not proven.

371-372. Cumulative. Res judicata and collateral estoppel. 373-385. Rejected. Res judicata and collateral estoppel.

386. Rejected as not proven. (See Hiss Ex. 24.)

387-388. Rejected. Res judicata and collateral estoppel.

389-425. Immaterial to RU-5 case and irrelevant. Also, res judicata and collateral estoppel.

426. Rejected as not proven.

427-489. Conclusions of law. Unnecessary.

490-491. Except as stipulated to by the County and the DCA, rejected as not proven. Accepted and incorporated as to the settlement Stipulation.

492-497. Accepted but immaterial to RU-5 case and irrelevant, res judicata and collateral estoppel, and subordinate and unnecessary.

498. Accepted and incorporated to the extent not subordinate or unnecessary.

499-511. Accepted but immaterial to RU-5 case and irrelevant, res judicata and collateral estoppel, and subordinate and unnecessary.

512. Accepted and incorporated to the extent not subordinate or unnecessary.

513-548. Accepted but immaterial to RU-5 case and irrelevant, res judicata and collateral estoppel, and subordinate and unnecessary.

549. Accepted and incorporated to the extent not subordinate or unnecessary.

550-616. Accepted but immaterial to RU-5 case and irrelevant, res judicata and collateral estoppel, and subordinate and unnecessary.

Manasota-88's Proposed Findings of Fact.

1. Accepted but unnecessary.

2-3. Rejected. RU-5 is at issue. For purposes of internal consistency, reference is made to the plan as amended through RU-6.

4.-5. Accepted and incorporated.

1. Cumulative to quotation of excerpts.

   
   

2. Accepted and incorporated.

8.-19. Conclusions of law.

20.-28. Rejected as subordinate to facts contrary to those found. "Minimal environmental impacts" refers to the manner in which the Walton Tract landfill would be developed.

29.-31. Rejected as subordinate to facts contrary to those found. "No other reasonable alternative" means no way to develop the Walton Tract landfill without disrupting wetlands.

32.-33. Accepted but subordinate to facts contrary to those found. The landfill site is not within the 100-year floodplain.

1. Rejected as subordinate to facts contrary to those found. Pre-RU-5 FLUM is not "data and analysis." See Conclusion of Law 22.

   
   

2. Accepted but subordinate to facts contrary to those found. See 34., above.

36-39. There are other relevant policies and objectives. The plan provisions speak for themselves and are quoted to the extent necessary.

40-41. Rejected as subordinate to facts contrary to those found. RU-5 contains adequate guidelines.

42. Rejected as contrary to facts found and cumulative.

43-54. Generally accepted but largely unnecessary and subordinate.

1. Accepted and incorporated.

   
   

2. The 550 acres represents the entire complex, not just the Class I landfill. Otherwise, accepted and incorporated.

57-59. Generally, accepted but largely unnecessary and subordinate.

60. Rejected to the extent that there are equally high quality wetlands on other portions of the Walton Tract. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

61-62. "Extremely" is rejected as argumentative. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

63-64. Rejected as not proven. The actual acreage of wetlands that will be destroyed 72.

65.-66. Rejected as not proven.

67-71. Generally accepted but largely unnecessary and subordinate.

1. Rejected as not proven.

   
   

2. Accepted but unnecessary in light of 72, above.

   
   

3. Accepted but unnecessary and subordinate.

   
   

4. Rejected as not proven. Only small portions are.

   
   

5. Accepted and incorporated.

   
   

6. Accepted and incorporated to the extent not subordinate or unnecessary.

78-80. Rejected as not proven.

81-86. Generally accepted but largely unnecessary and subordinate.

87. True but speculative.

88-90. Generally accepted but largely unnecessary and subordinate. Last sentence of 90, speculative and not proven.

91-92. Generally accepted and incorporated to the extent not subordinate or unnecessary.

1. Last sentence, rejected as not proven; rest, accepted and incorporated to the extent not subordinate or unnecessary.

   
   

2. Rejected as not proven.

95-117. Except where argumentative, factually generally accepted but largely unnecessary and subordinate. The study confirms that the Walton Tract is a suitable site for planning purposes even if it is not the best site based on environmental factors alone.

118-120. Generally accepted and incorporated to the extent not subordinate or unnecessary.

121-122. Rejected as not proven.

123-124. Generally accepted and incorporated to the extent not subordinate or unnecessary.

125-129. Rejected as not proven in various respects, and not a valid reassessment of the costs.

130-131. Generally factually accepted but still not a valid reassessment of the costs.

132-133. Rejected as not proven.

1. Accepted factually but subordinate to facts contrary to those found, and unnecessary.

   
   

2. Rejected as not proven.

136-137. Accepted factually but subordinate to facts contrary to those found, and unnecessary.

138. Rejected as not proven.

139-140. Accepted factually but subordinate to facts contrary to those found, and unnecessary.

141. First sentence, rejected as not proven; rest, accepted and incorporated to the extent not subordinate or unnecessary.

142-145. Rejected as not proven.

146. Accepted and incorporated to the extent not subordinate or unnecessary.

147-151. Rejected as not proven.

152-153. Factually accepted but subordinate to facts contrary to those found, and unnecessary.

154-159. Rejected as in large part subordinate to facts contrary to those found, and in part unnecessary.

160-164. Rejected as immaterial to RU-5.

165-166. Rejected as not proven. In part, foreclosed by principles of res judicata and collateral estoppel.

167-181. Rejected as generally subordinate to facts contrary to those found, and foreclosed by principles of res judicata and collateral estoppel.

182-183. Rejected as not proven. Res judicata and collateral estoppel.

184-197. In all these, the citation to the plan provision is cumulative, and the asserted internal inconsistency is rejected as not proven beyond fair debate.

1. Rejected as immaterial to RU-5, and irrelevant.

   
   

2. Rejected as not proven.

203-204. Rejected as not proven beyond fair debate.

205. Conclusion of law.

206-208. Rejected as not proven beyond fair debate. (The entire plan cannot and need not be reproduced on the FLUM.)

1. Rejected as not proven beyond fair debate. (Both apply to all new development.)

   
   

2. Conclusion of law.

   
   

3. Cumulative. Rejected as not proven.

212-214. Rejected as not proven. Ordinance 81-12 is not incorporated by reference. In any event, more recently adopted Apoxsee provisions govern over older inconsistent LDRs.

1. Rejected as not proven. Res judicata and collateral estoppel.

   
   

2. Third sentence, accepted but unnecessary; rest, rejected as not proven.

217-218. Rejected as not proven.

1. Rejected as not proven. Res judicata and collateral estoppel.

   
   

2. The quoted finding is accepted as accurate and is incorporated. Otherwise, rejected as not proven.

   
   

3. As to a), b), d), e), f) and g), rejected as not proven. To the extent that RU-5 follows the Hiss Final Order Remedial Action, res judicata and collateral estoppel. As to c), accepted and incorporated.

   
   

4. Conclusion of law.

   
   

5. Rejected as immaterial to RU-5 and irrelevant.

   
   

6. As to d), accepted and incorporated. Otherwise, rejected as not proven. Res judicata and collateral estoppel.

225-235. Foreclosed under principles of res judicata and collateral estoppel.

236-246. To the extent that these proposed findings seek a specific ruling whether RU-5 complies with the Hiss Final Order Remedial Action, rejected as not beyond the purpose of this proceeding. Otherwise, in part, cumulative and, in part, res judicata and collateral estoppel.

247-270. Cumulative.

271-287. Rejected as being proposed remedial action, not proposed findings of fact.

COPIES FURNISHED:

Michael P. Donaldson, Esquire Department of Community

Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Maynard L. Hiss

1494 Landings Lake Drive Sarasota, Florida 34231

Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

Richard E. Nelson, Esquire Douglas M. Cook, Director Richard L. Smith, Esquire Florida Land and Water Nelson Hesse Cyril Smith Adjudicatory Commission Widman Herb Causey & Dooley Executive Office of the 2070 Ringling Boulevard Governor

Sarasota, Florida 34237 311 Carlton Building

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE ADMINISTRATION COMMISSION WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE ADMINISTRATION COMMISSION CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 91-006018GM

Orders for Case No: 91-006018GM