STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. )
) CASE NO. 92-2959DRI ROBERT CROWDER and POLK COUNTY, )
)
Respondents. )
)
RECOMMENDED ORDER
On December 15 through 18, 1992, a formal administrative hearing was held in this case in Bartow, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Terrell K. Arline, Esquire
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Crowder: Cecelia Bonifay, Esquire
Leslie S. Campione, Esquire
113 West Main Street Tavares, Florida 32778-0039
For Polk County: Timothy F. Campbell, Esquire
Assistant County Attorney Post Office Box 60 Bartow, Florida 33830
STATEMENT OF THE ISSUES
The issue in this case is whether the development order issued by Polk County for Robert Crowder's development known as Paradise Country Estates complies with Chapter 380, Fla. Stat. (1991). The Department of Community Affairs' Petition for Appeal of Development Order (the DCA Petition) alleges that the development order is contrary to Polk County's 1985 comprehensive plan for the following reasons:
Paragraph 11 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 9, Objective III, "Natural Resources," of the Land Use Element (LUE) of the 1985 Plan. Policy 9 states: "Structures should be placed in a manner which will not adversely affect the natural flow regime and which will not reduce the recharge capabilities."
Paragraph 12 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 10, Objective III, "Natural Resources," of
the LUE. Policy 10 states: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973."
Paragraph 13 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 11, Objective III, "Natural Resources," of the LUE and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Respectively, these policies state:
11. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies.
* * *
Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas.
Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern.
Paragraph 14 of the DCA Petition alleges that the development order is contrary to a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources," which describes the Green Swamp as a "rare and unique land area resource for conservation consideration" and also states:
The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats.
Paragraph 15 of the DCA Petition alleges that the development order is contrary to the following section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships":
The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development.
Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes.
Paragraph 16 of the DCA Petition alleges that the development order is contrary to Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan: "Protect or improve existing ground and surface-water quality."
Paragraph 17 of the DCA Petition alleges that the development order is contrary to Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE:
Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas.
Paragraph 19 1/ of the DCA Petition alleges that the development order is contrary to Policy 2, Objective IV, "Residential Uses," in Part V of the LUE:
Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services.
Paragraph 20 of the DCA Petition alleges that the development order is contrary to Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code). 2/ Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part:
GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse:
* * *
(6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.
Paragraph 21 of the DCA Petition alleges that the development order is contrary to Section 5-2(4) of Polk County Ordinance 81-28. 3/ Section 5-2 provides in pertinent part:
SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided:
* * *
Subdivision Proposals: All subdivision proposals and other proposed developments
shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met:
All such proposals shall be reasonably safe from flood waters resulting from the base flood.
All such proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage.
Base flood elevation data shall be provided for all such proposals.
Roads shall be reasonably safe from flood waters resulting from the base flood.
Paragraph 22 of the DCA Petition alleges that the development order is contrary to Section 6-2(3)(a) of Polk County Ordinance 81-28. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part:
GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . ..
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(3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site.
PRELIMINARY STATEMENT
Polk County received an application for approval of roadway and drainage construction plans for Robert Crowder's project known as Paradise Country Estates on or about March 18, 1991. The subject property is located within the Green Swamp, an area designated by statute as an Area of Critical State Concern (ACSC). The proposed project was consistent with the existing zoning classification and did not undergo zoning review; administrative staff reviewed the application under the County's land development regulations.
On or about January 27, 1992, the County's Division of Engineering Services issued final approval of the roadway and drainage construction plans for the Paradise Country Estates development.
On or about January 30, 1992, the County rendered the roadway and drainage construction plans to the DCA. The Department of Community Affairs' Petition for Appeal was filed on or about March 13, 1992.
On or about May 14, 1992, FLWAC forwarded the case to the Division of Administrative Hearings and requested that a Hearing Officer be assigned to conduct a hearing in the matter. On June 22, 1992, a prehearing conference was held for purposes of scheduling final hearing and, on June 23, 1992, a Notice of Hearing was issued scheduling final hearing for four days, beginning on December 15, 1992, in Bartow, Polk County, Florida.
At the final hearing, Crowder presented the testimony of: Sue Murphy, a professional planner, who was accepted as an expert in land use planning in the State of Florida; Rick Powers, a registered professional geologist in the State of Florida, who was accepted as an expert in the geological and hydrogeological features of the Green Swamp; Mark Wilson, an engineering intern with Alpha Engineering, who obtained all permits for the project and prepared the construction plans for the project under the supervision of a professional engineer licensed in the State of Florida; David Carter, a professional engineer licensed in the State of Florida, who was accepted as an expert in surface water management and floodplain management in the Green Swamp Area of Critical State Concern, and floodplain management under the National Flood Insurance Program; Michael Graves, a registered professional geologist in the State of Florida and the State of South Carolina, who was accepted as an expert in geology and hydrogeology for the purpose of testifying on the impacts of on- site waste disposal systems on groundwater quality and the affects of individual water wells on the quantity and flow of groundwater, wetlands and flood detention areas; Joe Howell, a certified soil scientist and environmental specialist, who was accepted as an expert in soils, wetlands, and the impacts of on-site waste disposal systems on surface waters and wetlands; William Evans, a rancher who owns and resides on property adjacent to the subject property and was a partner in the company which was the prior owner of the subject property ; and Robert Crowder, the owner of the subject property. Also, Crowder Exhibits 1, 5, 6 through 23, 25 through 30, 33, 36, and 39 were offered and received in evidence. 4/
Polk County presented the testimony of: Merle Bishop, the Director of Community Services; Donald J. Dobson, a former Technical Planning Coordinator with Polk County, who was responsible for reviewing the roadway and drainage construction plans pursuant to the County's Zoning Ordinance; Ramon E. Monreal, a professional engineer licensed in the State of Florida, who is in the County's Department of Engineering Services and was responsible for reviewing the construction plans pursuant to the County's Subdivision Regulations; Michael Finch, a professional engineer licensed in the State of Florida, who is the Surface Water Management Coordinator in the County's Engineering Services Division and is responsible for reviewing the roadway and drainage construction plans pursuant to the County's Flood Protection and Surface Water Management Ordinance and the County's Surface Water Management Plan; and Steven Shealey, a Utilities Staff Engineer with Polk County.
The Petitioner presented the testimony of: Richard Coleman, who was a member of the 1974 Polk County Green Swamp Task Force and the 1992 Polk County Green Swamp Task Force; Russell Grace, a DCA employee with the Bureau of Local Planning, who is responsible for reviewing amendments to local government comprehensive plans and compliance with State growth management laws; Kevin Sherman, who is a research coordinator with the State of Florida Department of Health and Rehabilitative Services; Dr. Rodney S. Dehan, a DER Groundwater Program Administrator; Dr. Steven French, the Director of the City Planning Program at Georgia Tech; and Michael McDaniel, a DCA Community Program Administrator responsible for the administration of critical area use programs. Also, DCA Exhibits 1, 2, 3, 5a, 5b, 6, 7, 9, 10, 12, 13, 15 through 20, 22 through 31 (including 29a and 29b), and 34 were offered and received in evidence. 5/
At the end of the final hearing, the parties ordered the preparation of a transcript of the final hearing and asked for, and were given, 20 days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed January 27, making proposed recommended orders due February
16, 1993. Polk County filed an unopposed motion, which is granted, to extend the deadline one day, to February 17, 1993.
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. 92-2959DRI.
FINDINGS OF FACT
The Proposed Project and Location.
The project site is on Dean Still Road in Polk County, approximately 2 miles west of State Road 33. It is approximately 6 and 1/2 miles from Polk City and 15 miles from the City of Lakeland.
The proposed project is comprised of 356 lots on approximately 1280 acres with a gross density of 1 unit per 3.6 acres. Although the average lot size varies, the project was reviewed under the Southwest Florida Water Management District's (SWFWMD) criteria for rural development which requires that at least 90% of the lots be at least 2 acres in size (excluding jurisdictional wetlands), and 10% of the lots be at least 1 acre (excluding jurisdictional wetlands).
The site has been zoned Rural Conservation under Polk County's Zoning Code for approximately 12 years. This designation allows a density up to 1 unit per acre.
Individual water wells and on-site waste disposal systems (septic tanks) will be utilized for each home. There are no water or sewer extensions proposed for the site or for adjacent areas by any governmental entity.
Access to the site from Polk City is along Dean Still Road, which is unpaved at this time. The County has plans to pave it in the near future.
Of the 1280 acres comprising the project site, 362 acres have been claimed as jurisdictional wetlands and approximately 642 acres have been mapped within the 100-year floodplain by the Federal Emergency Management Agency (FEMA). 51 of the lots platted in the project are entirely within the FEMA 100- year flood plain. Several other lots contain large portions within FEMA 100- year flood plain.
Despite the significant amount of wetlands and floodplains on the site, the project is designed so that no net loss will occur in the floodplains and less than 1% (.59%) of the jurisdictional wetlands will be impacted by development. Impervious conditions on the site will only increase by 2.8% after development. All structures will be set at or above the 100 year flood elevation, as calculated by the project engineers, and will be constructed in accordance with the County's flood protection standards. The project is designed so that post-development runoff is less than pre-development runoff and post-development drainage basins conform to pre-development drainage basins. Existing drainage patterns for the site are designed to be maintained.
The property comprising the project has been used through the years for a variety agricultural purposes, including harvesting watermelons, soybeans, corn, and silage. It has been drained and ditched to facilitate these activities. It is currently being used for grazing cattle.
A sod farm is located to the south of the property. Additional cattle grazing lands run south from there to Polk City. To the north of the site are ranchlands which run to the border of the Withlacoochee Wildlife Area.
Immediately to the west of the site are 20-30 scattered mobile homes and additional ranchlands in a subdivision known as Evans Acres. This subdivision was initially approved by DCA in 1983, and was comprised of 48 lots on approximately 1,290 acres. The original lots ranged in size from 5 to 60 acres. Apparently, individuals have since split their lots and many of the existing lots are 2 to 5 acres in size. A few of the original lots are used for both residential and ranching purposes. Including the large and small lots, there are approximately 163 lots on the property comprising Evans Acres.
On the property directly to the east of the site are approximately 16 mobile homes along Melody Lane. These existing homesite numbers are small and scattered when compared to the 356 lots proposed for Paradise Country Estates.
Approximately 120 families live in the general vicinity of the proposed project.
The Green Swamp.
The project is within the Green Swamp Area of Critical State Concern (ACSC). The site is within the drainage basin of the Withlacoochee River, which has been designated an Outstanding Florida Water (OFW) and is approximately three and a half miles to the north.
The Green Swamp ACSC was designated by the Legislature. Chapter 79- 73, 380.0551, Florida Statutes (1991). It was the second area to be designated and now is one of only four areas in the State retaining this designation. The Green Swamp was designated because the area's natural resources were considered to be of regional and statewide importance and because of concerns that uncoordinated development could endanger these resources.
The Green Swamp is a regionally significant area for recharge of the Floridan Aquifer. The Green Swamp is unique because the top of the Floridan Aquifer is at or near the surface over much of the area. This creates what is known as the potentiometric high of the Floridan Aquifer. The potentiometric high pressurizes the Floridan Aquifer, permitting it to be used for drinking water wells. The Florida Aquifer serves as the principal source of drinking water for central Florida. It supplies the entire State with about 48 percent of its ground water supply. The potentiometric high also serves to hold back salt water intrusion into the Floridan.
Recharge is important in maintaining the potentiometric high of the Floridan Aquifer. Although the Green Swamp has been characterized as a recharge area for the Floridan Aquifer, the actual recharge capabilities of the Green Swamp vary considerably throughout the region. Some areas within the Green Swamp, such as the high, dry, sandy ridge on the eastern boundary of the Green Swamp clearly are high recharge areas. In some areas, the Floridan Aquifer rises essentially to the ground surface, with no confining layer above it. In those areas, a considerable amount of surface water filters into the Floridan Aquifer. In other areas, including in the vicinity of the project site, recharge capability is considerably less. See "G. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code, (3) Ground Water Recharge."
The head waters of several rivers, including the Withlacoochee River, are in the Green Swamp.
Polk County's Comprehensive Plan.
Polk County's Comprehensive Plan, as amended by Polk County Ordinance 85-08 (Ordinance 85-08), is referred to as Polk County's 1985 comprehensive plan, or the 1985 plan. It includes a Land Use Element (LUE) and a Conservation Element.
The Land Use Element.
The 1985 Plan is a "policy plan." As a "policy plan," the LUE does not map land use classifications or densities or intensities of development. The different parts of the plan must be considered together to ascertain their meaning. As stated in the Foreward to the LUE:
The Policy Plan is a flexible and realistic guide to future public decisions. Existing conditions are first determined and analyzed. Then, community goals are identified providing a process of finding out where we are and where we want to go.
* * *
. . .. The challenge is to determine the means of achieving the identified community goals at minimal cost and the least possible hardship on any segment of our society.
Under the policies planning process this is accomplished by developing all possible alternative courses of action that will advance the community toward the desire goal. The policies are then a general statement of purpose and outlining broad principles toward which the plan is guided in the implementation stage. A policy plan does not detail specific actions or locations on a map. Rather it provides a broad framework within which
day-to-day decisions are made in a consistent manner toward an identified goal. The ultimate product of those community goals will be the heritage of Polk County's future.
At 4-2, the LUE discusses the need to give attention to "the proper distribution of population densities in keeping with sound planning practices, the physical capabilities of the land, and the relationship of the population and housing densities to existing or proposed transportation facilities and other community services." It then speaks to "Retention of Open Spaces":
A second potential problem to be faced, as urban growth continues, is the potential loss of the open space characteristics that now contribute substantially to its desirability as a community in which to live and visit.
To a large extent, the desirable characteristics are provided by extensive agricultural areas. Such uses are compatible
with residential and other types of urban land uses and should be encouraged to remain to the maximum extent possible. Desirable open space is also presently provided by . . . wetland areas not suited for urban development. By encouraging such areas to remain in their present condition, a substantial amount of open space can be retained to provide the needed visual relief and openness necessary within a highly urbanized community.
At 4-5, discussing "Retention of Unique Agricultural Lands," the LUE states that cattle raising and field crops are subject to potential intrusion by urban development and states: "The development of planning techniques, which will encourage the retention of important agricultural lands and provide for orderly urban development, thus becomes a matter of considerable importance."
The Goals, Objectives, and Policies (GOPs) of the LUE starting at 5-1 include the following:
General Goal:
To maintain productive and mutually compatible use of lands and waters within Polk County in a manner consistent with the economic, physical and social needs, capabilities, and desires of Polk County and its citizens.
Objective I - Agricultural Uses:
To ensure that a sufficient quantity of appropriate lands are available and protected for productive agricultural uses necessary to a sound economic base.
Policies:
* * *
2. Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas.
* * *
5. Provide all possible incentives for the retention of lands into agricultural production.
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Objective III - Natural Resources
Minimize adverse impacts of development on valuable natural resources including the protection of water quality and quantity in surface and ground waters.
Policies:
* * *
2. The subdivision and platting of land shall be permitted in accordance with the zoning district applied to the property and in
compliance with the Polk County Subdivision Regulations and Flood Protection/Surface Water Management Ordinance.
* * *
Site alteration should be permitted only when such alteration will not adversely affect the natural flow regime or the natural recharge capabilities of the site.
Site alteration should be permitted only when such alteration will not result in the siltation of wetlands or reduce the natural retention and filtering capabilities of wetlands.
Site alteration activities should provide for water retention and settling facilities; should maintain an overall site runoff equivalent to the natural flow regime prior to alteration and should maintain a runoff rate which does not cause erosion.
* * *
Storm water runoff should be released into the wetlands in a manner approximating the natural flow regime.
Structures should be placed in a manner which will not adversely affect the natural flow regime and which well not reduce the recharge capabilities.
Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973.
Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies.
Objective IV - Residential Areas
To ensure that an adequate supply of appropriately located lands are available for the development and maintenance of residential areas that can be efficiently and effectively provided with necessary public facilities and services.
Policies:
Promote and encourage the provision of a wide range of housing opportunities, in appropriate locations, to permit a choice of housing types to suit the particular needs of all citizens.
Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and
the efficient provision of facilities and services.
* * *
Encourage new residential development that can be effectively served by the existing transportation facilities.
Promote new residential development in non-urban areas, that is properly designed to combine with future adjacent development, to create a neighborhood of sufficient size to facilitate the efficient and effective provision of all necessary public facilities and services.
Part VI of the LUE, entitled "Alternate Approaches," discusses the pros and cons of different concepts for planning and managing of growth. It settles on a "Resource-Responsive Concept" as the preferred growth alternative. This concept holds in part:
Wherever possible, future growth should be encouraged to take place in or near established urbanized areas.
Scattered growth incapable of functioning as meaningful self-contained communities should be discouraged. And it is preferable that the urbanizing area, as it extends over extensive areas within the County, not be developed in one continuous, monotonous maze of residential, commercial, and industrial uses - but that there be open space provided at appropriate intervals so as to provide visual relief and a sense of scale to the overall urban community. Such open space areas can be productively utilized for agricultural and conservation purposes or recreation areas, public facilities and services required.
It is proposed that the most appropriate urban growth concept to meet such guide-lines and the policy statements of this land use plan be a resource-responsive growth concept. Under this concept, urban growth and development will be guided and encouraged with respect to its responsiveness to the natural and human resource capabilities of the County. Within any given area of the County, the resources will be careful evaluated in terms of their capability to support growth, and the physical form and intensity of development will be then shaped to provide the physical form and intensity of development will be then shaped to provide a balance with such resources.
Prime resources to be considered are as follows:
Natural Resources
Topography and soil conditions
Vegetation and tree cover
Wildlife habitats present
Drainage characteristics; relationship to rivers and lakes
Natural water supply capabilities
General aesthetic qualities
Human Resources
Transportation facilities (roads, railroads, airports)
Available water supply and sewage facilities
Community facilities, such as schools, parks, libraries
Protective services, such as fire and police
Established land uses within the area
Economic conditions and potentials.
Part VII of the LUE, entitled "Implementation," states: "Initial implementation of a Comprehensive Plan and initiation of the continuing planning process for growth management requires the establishment of principals and standards for measurement of proposed activities against the adopted policies of the community." It includes a section entitled "Principles and Standards for the Control and Distribution of Population Densities and Structural/Development Intensity," which provides in part:
All Types of Urban Development:
* * *
Each new development or land use should follow sound land planning principles to maximize site advantages, avoiding when possible, adverse impacts on the natural resources and hazards to health, safety, or general welfare.
* * *
Residential Development:
Low-density single-family development (1-4 units/acre), other than rural residences related to agricultural operations, shall be located in areas capable of being developed into stable, cohesive neighborhoods.
In a section entitled "Legal Requirements of Implementation," it states that "all actions taken by local government, whether in the form of permitting private development to occur or in the provision of public facilities and services, are required to be fully consistent with the adopted Comprehensive Plan. The plan, once adopted, must occupy a central position in the consideration of all proposed development." In another section, entitled "Coordination with Other Plan Elements," it states that the "land use element cannot be implemented alone [but] must be coordinated with the [other elements]." In another section, entitled "Needed Improvements in the Zoning Ordinance," it is recognized that "it will be essential that a thorough review of the zoning ordinance be undertaken and that the ordinance be revised as appropriate to achieve consistency with overall planning objectives." It acknowledges that there were "major identified deficiencies in the current zoning regulations" and advises that "the following needs among others should be addressed as a minimum in making revisions to the zoning ordinance": "Revision of the Density Requirement in Residential Districts."
Despite the admonitions in the 1985 Plan, to date there has been no revision of the land use classifications, densities, or intensities in the County's zoning code. As before the 1985 Plan was adopted, zoning in the Green Swamp ACSC remains Rural Conservation (RC) and allows up to one unit per acre residential development.
The Conservation Element.
Part II of the Conservation Element of the Polk County Comprehensive Plan is a "Summary of Natural Resources." At 2-18, there appears a section entitled "Rare and Unique Natural Resources," which describes the Green Swamp, as well as other natural resources in the County, as a "rare and unique land area resource for conservation consideration." At 2-19, as amended by Ordinance 85-08, this element of the comprehensive plan also states:
This area comprises the hydrologic heartland of Central Florida and contains the headwaters of the Withlacoochee, Hillsborough, Peace and Oklawaha Rivers. The potentiometric high of the Floridan Aquifer lies within this area.
. . . The area has a high potential for recreational and natural enjoyment. . . .
The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats.
Part IV of the Conservation Element is a "Summary of Special Problems, Areas, Issues, and Relationships." Starting at 4-2, it addresses the following:
Displacement
. . .. Cities in Polk County have historically developed on the ridges and the urbanized areas are spreading outward rapidly into the prime citrus lands and the "marginal" (flood prone) lands.
There is considerable concern about urban development in wetland soils and flood prone areas. The double barreled concern for development in wetland soils and wetland areas is that they might well serve valuable natural functions and the private and public problems created by development subjected to flood damages. This property damage promotes public pressure for drainage in wet areas. The issue in wetland drainage and flood control is the jeopardy of natural functions that wetlands and water fluctuations provide in natural systems and flood damage costs.
. . . [C]oncern for the growing demand for uplands development which steadily displaces [good pasture land] . . . relate[s] to the use of good pasture land for development.
Density
The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land,
not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes.
* * *
Water
* * *
Another area of concern relates to the draw down and recha[r]ge of the Floridan Aquifer and is claimed to be a rational concern of an area much larger than Polk County.
* * *
Pollution
Environmental pollution, as it relates to water, is a major local concern.
* * *
Water pollution is concerned because of its effects on recreation and tourism. Water degradation and the pollution of lakes and rivers tends to remove the intangible value that Polk County enjoys in thee form of its surface water resources.
* * *
Also, the related cost issues of municipal sewage treatment and disposal, effluent disposal techniques, septic tank useage are environmentally economic choices to be made by the public.
Discussing the topic, "Preservation and Management," starting at 4-4, Part IV of the Conservation Element states in part:
Many issues relate to what, how, or when something should be conserved.
* * *
Lakes, rivers and canals of the county are of concern as sources of flooding and as resources for flood control, if properly managed. Flood prone areas surrounding surface water have been identified for much of the county. These water bodies are also legitimate concerns as the habitat for fish and other wildlife that provide a significant value in their own right. The area of these water bodies are also special scenic and
recreational values that contribute to tourism and development.
Part V of the Conservation Element is where the "Goals, Objectives and Policies" are found. It start with some general observations, including in part:
. . .. It can be expected, therefore, that the natural environment of the county will continue to undergo modification of one type or another in response to the needs of people. . . . The inventory of total space will, therefore, diminish as these changes take place, resulting in corresponding losses within particular categories of natural resources. What is important is that no critical loss of impairment of a natural resource take place; that development be managed so as to create minimum disturbance of the remaining natural resource systems; and that there be compensation replenishments of resources wherever possible.
It then lists a General Goal and several resource-specific objectives and policies:
General Goal:
Maintain, protect, develop and utilized the natural resources in a manner that will balance and replenish the natural ecological systems and will best serve and promote the desired quality of life for Polk County resident, present and future.
* * *
Water Resource Objective:
To conserve and protect the quality and quantity of water resources through proper management.
* * *
6. Identify and protect significant acquifer [sic] recharge areas for maximum recharge capability and protect the water available for aquifer recharge.
* * *
Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas.
Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern.
Protect the functions of the
Potentiometric High of the Floridan Aquifer.
Prevent further salt-water intrusion into the Floridan Aquifer.
Protect or improve existing ground and surface-water quality.
Protect the water retention and biological-filtering capabilities of wetlands.
Protect the natural flow regime of drainage basins.
Rare and Unique Natural Resource Objective: To conserve and protect, through proper resources management, areas having unique natural characteristics and particularly sensitive environmental balance.
* * *
Policies:
Identify all significant areas in Polk County deemed to have unique natural resource characteristics.
Encourage proper management of unique wetland areas of the County as a vital water resource.
Encourage a proper system for control of development in flood prone and wetland areas to regulate alternation [sic] of the natural system of water retention and storage during periods of heavy rainfall.
Preserve and protect, to the maximum extent possible, all delineated areas having valuable unique resource characteristics.
Part V of the Conservation Element concludes with a "Summary," which states in part:
The objectives and policies set forth above should not be considered as controls to be rigidly applied in every instance of decision-making dealing with the natural environment. Rather, in dealing with resource conservation issues, guidance is preferable to control. . . . A number of potential implementation actions and programs, presented in the following part, will further assist in establishing the direction and scope of conservation activities in the County.
Part VI of the Conservation Element is entitled "Implementation." While acknowledging at 6-1 that Polk County cannot establish an implementation program unilaterally, without regard to the co-responsibilities of other governmental authorities at the regional state and federal levels, it states at 6-2 that Polk County "can and should":
Utilize the general objectives and policies established by this Element as
considerations in all decision making concerning the use and improvement of land within the County.
* * *
3. Utilize, to the fullest extent possible, the policies and implementation controls of other elements of the Polk County Comprehensive Plan, and those of other governmental entities having jurisdiction, to further the conservation of natural resources.
Starting at 6-3, Part VI discusses the Conservation Element's "Relationship to Other Plans." At 6-4, after stating that the Conservation Element will be largely implemented through the policies and programs of other comprehensive plan elements, Part VI provides:
Land Use Element - This element will provide the overall framework for conservation [sic] potentialities through the manner in which land uses are distributed, arranged, and interrelated throughout Polk County. Policies and implementation programs of this element will determine the degree to which new development is properly related to soil types and capabilities, natural habitats, flood prone areas, wetlands and unique resource areas of the County. Land regulatory controls such as zoning, subdivision regulations and development impact reviews provide the basic tools for implementation of the policies of the Land Use Element.
Starting at 6-5, Part VI discusses "Guidelines for Implementation." At 6-5, it points out:
The nature of conservation policy, being of such broad application and diversity of interest, requires that its effective implementation utilize many approaches, techniques and procedures. Its application is carried out, for the most part, in an indirect way as a by-product of other more direct decisions and actions relation to the development and growth of the County. It is essential, therefore, that Polk County draw upon all possible alternative mechanisms and techniques which will lead to the effective conservation of its natural resource systems.
Among the various approaches which Polk County may utilize to further its conservation objectives are the following.
* * *
Influence in the allocation of resources to achieve the objectives of the conservation plan.
Control of events which determine resources allocation in keeping with the conservation plan.
* * *
Specific procedures and techniques which may be utilized to facilitate the implementation process include the following.
* * *
7. Protect natural water bodies and adjacent wetland areas through the regulation of development densities and proper management of stormwater runoff. This would require a cooperative effort with the Water Management Districts in identifying flood plains for various flood frequencies.
Polk County's Flood Protection and Surface Water Management Code.
Polk County's Flood Protection and Surface Water Management Code was enacted as Ordinance 81-28 and was amended by Ordinance 85-07. Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part:
GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse:
* * *
(6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.
Section 5-2 provides in pertinent part:
SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided:
* * *
Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met:
All such proposals shall be reasonably safe from flood waters resulting from the base flood.
All such proposals shall have public utilities and facilities such as sewer, gas electrical and water systems located and constructed to minimize flood damage.
Base flood elevation data shall be provided for all such proposals.
Roads shall be reasonably safe from flood waters resulting from the base flood.
Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part:
GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . ..
* * *
(3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site.
Review under the 1985 Plan and the Flood Protection and Surface Water Management Code.
Land Use, Density and Intensity.
DCA alleges that the land use, density and intensity of the development Crowder proposes for the site is inconsistent with: (1) the section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships"; (2) a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources"; (3) Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE; and (4) Policy 2, Objective IV, "Residential Uses," in Part V of the LUE. 6/
As previously stated, the 1985 Plan is a policy plan that does not map land use classifications or densities or intensities of development. Crowder's Paradise Country Estates is consistent with the County's Zoning Code, which has not changed since before the 1985 plan, and Zoning Map. The development was not otherwise reviewed for land use, density or intensity. But it is clear that the 1985 plan does not condone exclusive resort to the zoning code to determine the appropriateness of the land use, density and intensity for development in the Green Swamp ACSC. See, especially, the section entitled "Density" in Part IV of the Conservation Element of the Plan. In the Green Swamp ACSC, especially, reference must also be made to the Plan itself. See Part VII of the LUE, entitled "Implementation."
It is not found that all residential use on the Crowder property would be, in itself, inconsistent with the 1985 Plan. But, taking into consideration all of its land use, density and intensity provisions, it must be found that the development order issued in this case, especially at its level of density and intensity and especially in the manner of its issuance, is inconsistent with the 1985 Plan. The crux of the problem with this development, like others in the Green Swamp ACSC already permitted by County development orders, is that, first, the 1985 comprehensive plan and the County zoning regulations in place at the time were inadequate and, second, the steps envisioned in the plan to make them adequate have not been taken. For the plan and the zoning regulations to be adequate, and for a development order for a project in the Green Swamp ACSC in
Polk County to be consistent with the 1985 comprehensive plan, either: (1) the plan must be amended to map land use classifications, densities and intensities of development in the Green Swamp ACSC; (2) the zoning code must be amended as envisioned in the comprehensive plan for the Green Swamp ACSC; or (3) the County must evaluate development orders for projects in the Green Swamp ACSC on a case- by-case basis for consistency with the comprehensive plan. None of these three possibilities happened in this case. 7/
Flood Plain Delineation.
Paragraph 12 of the DCA Petition alleges that the Crowder development violates Policy 10 of Objective III, "Natural Resources," of the LUE: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Specifically, it is alleged that the use of a Federal Emergency Management Agency (FEMA) undetailed "A" zone to map the flood prone area on the site, and the failure to perform a detailed study, did not comply with the Flood Disaster Protection Act of 1973. Other allegations in the DCA Petition also implicate the delineation of the flood prone areas on the site. See, (5) Ground and Surface Water Quality, below.
A FEMA "A" zone is the zone depicting the area determined by FEMA to be flood prone. In this context, FEMA defines a "flood prone" area as an area flooded in a 100-year, 24-hour storm.
At the time Polk County reviewed the Crowder project for approval of the roadway and construction drainage plans, FEMA was requiring that a detailed study be performed to delineate the flood prone area. Polk County apparently was not aware of this requirement and was not enforcing it. Nor, apparently, was Crowder's engineer aware of it. In any event, Crowder did not have a detailed study performed to delineate the flood prone area on the site, and the County did not require it.
In approximately March, 1992, Polk County received a written communication from FEMA advising of the requirement for a detailed study of the flood prone area in the case of developments like Crowder's. Polk County now requires compliance with this FEMA requirement.
Crowder did not rely simply on the FEMA undetailed "A" zone to map the flood prone area on the site. Crowder's engineers used the existing undetailed FEMA maps as a starting point for determining base flood elevations. The engineers digitized the areas which had been designated as flood prone on the FEMA panels. The engineer then overlayed the digitized FEMA map with the on- site wetlands survey of the property, which had been field-staked and field- shot. Topographical field shots of the property which had been conducted throughout the site at one foot intervals were also overlayed on the digitized FEMA map. In addition, the engineer took into consideration mapped wetlands soils and compared flooding conditions which had occurred on adjacent property to assess whether all areas actually prone to flooding had been characterized as flood prone on the FEMA map.
The methodology used by the project engineers was based on sound engineering practices. Nonetheless, it does not qualify as a "detailed study" as far as FEMA is concerned. A "detailed study" would include the application of a computer program that would "route" hypothetical flood waters onto and through the property to ascertain flood elevations in different stages of the hypothetical flood.
It is not possible to determine how a detailed study would change the delineation of the flood prone area in Crowder's proposal. The total area of flood prone area could either increase or decrease; it could increase in some places and decrease in others. As it is, several of the lots platted in the Crowder development would be entirely within both the FEMA undetailed "A" zone and the flood prone area mapped by Crowder's engineers.
Ground Water Recharge.
DCA alleges that platting Paradise Country Estates will adversely impact recharge of the Floridan Aquifer, contrary to Policy 9 and 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan.
In the vicinity of the project site, the Floridan Aquifer comes to within 35 feet approximately of the ground surface. Above the Floridan Aquifer is a shallow aquifer, which rises to within approximately 12 inches of the surface. There is a layer of clastic soils (sand and clay) between the surficial aquifer and the Floridan Aquifer. This confining layer slows the rate of recharge to the Floridan. As a result, the project site is in an area having low, or even very low, to moderate recharge capabilities, at best. USGS Professional Paper 1403-E, which was released in 1990, uses groundwater modelling to quantify recharge rates, instead of using qualitative terms such as "low," or "poor," "moderate" and "high" to describe recharge capabilities. USGS Professional paper 1403-E reports that many areas in the Green Swamp previously labeled as good, moderate or high recharge areas are actually capable of only recharging at rates of 3 to 4 inches per year. The subject property appears to be in the 2 to 3 inch range per year for recharge according to USGS Professional Paper 1403-E.
Only three known sample soil borings have been taken on the project site. As a result, the extent of permeability and overall thickness of the confining layer between the surficial and Floridan aquifers is not certain. But there is no reason to believe that there are any karst features or other geologic faults in the area that would allow for direct connections between the surficial and Floridan aquifers. The soil borings that have been taken on the site verify the various geological surveys and studies describing the recharge capabilities in the area.
Due to the site's limited capabilities as a recharge area, it is unlikely that the platting of this site will result in any significant reduction in its natural recharge rate. The project is not inconsistent with Policy 9 or 11, Objective III, "Natural Resources," of the LUE, or Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan.
Individual Water Well Use.
DCA alleges that the planned use of individual water wells in Crowder's Paradise Country Estates will impact the quantity of the Floridan Aquifer (and the surficial aquifer) contrary to Policy 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan.
The potentiometric level of the Floridan Aquifer protects the Floridan Aquifer from salt-water intrusion. Significant de-watering of the aquifer caused by large municipal or industrial wells extracting a high volume of water from the aquifer at an intense rate can lower the potentiometric pressure, thus increasing the potential for salt-water intrusion into the aquifer. (Furthermore, the lowered potentiometric pressure creates a hydraulic gradient which encourages surface waters to percolate downward at a faster rate due to the decreased pressure in the Floridan Aquifer. See the preceding sections on Ground Water Recharge and the following section on Ground and Surface Water Quality.)
Large municipal, industrial or agricultural wells which exceed 6 inches in diameter must obtain consumptive use permits from the SWFWMD. The Water Management District takes into account what the District determines to be a safe yield per acre when issuing a consumptive use permit. Small, residential wells are not subject to this permitting process as their impacts are much smaller and less intense, and not a concern with regard to their effect on the potentiometric pressure. For this reason, some coastal areas have begun using smaller, individual wells as an alternative to larger municipal wells. The Floridan Aquifer is replenishing itself fast enough for residential wells not to "de-water" or "draw down" the aquifer's supply of ground water. Residential wells do not lower the potentiometric pressure of the Floridan to a significant degree. Nor would they affect the normal supply of ground water, or contribute to salt-water intrusion. Pumping tests performed within two to three miles west of the project site which utilized several residential-size wells support the foregoing conclusions.
For these reasons, it is found that the development will not adversely impact the normal supply of ground water and thus will not interfere with the functions of the potentiometric high of the Floridan Aquifer, including its protection against salt-water intrusion. Since the water wells would pump only from the Floridan Aquifer, they would not impact the supply of surface water.
In regard to the use of water wells, the project is not inconsistent with Policy 11, Objective III, "Natural Resources," of the LUE, or with Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan.
Ground and Surface Water Quality.
DCA alleges that Paradise Country Estates will result in unacceptable contamination of the Floridan Aquifer, the surficial aquifer, and the surface water (particularly the Withlacoochee River) contrary to Policies 9, 10 and 14 of the "Water Resource Objective" of the Conservation Element. Paragraph 20 of the DCA Petition alleges that the use of individual on-site disposal systems (OSDS), or septic tank systems, in violation of Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code), 8/ in particular, will be part of the cause of the unacceptable contamination (other causes being from lawn and garden maintenance and automotive wastes.)
On-Site Disposal Systems.
Chapter 10D-6, Florida Administrative Code, sets forth requirements for the use of on-site waste disposal, or septic tank, systems in the State of Florida. That chapter, which is administered by the Department of Health and Rehabilitative Services ("HRS") through local health departments, provides construction standards for the installation of on-site waste disposal systems.
The septic tank serves as a holding tank designed to separate solids and floatable materials and allows anaerobic digestion of organic materials. The remaining effluent exits the tank into the soil infiltrative process, which is referred to as the drainfield. The drainfield is composed of gravel placed
around perforated pipes, which are designed to evenly distribute and release the effluent into soil material where the effluent undergoes aerobic digestion.
Eventually, any constituents remaining in the effluent which have not been absorbed by the root zone or otherwise decomposed reach the subsurface waters which are referred to as the surficial water table.
Each individual lot owner will be required to obtain a permit from the local health department prior to installing an on-site waste disposal system. Prior to issuing a permit, HRS inspects each site to assess soil limitations and to conduct a percolation test to determine the seasonal high water table for the site. Because the soils on the site are severely limited for filtration purposes and the high water table is only 10 to 12 inches below the surface, individual lot owners will be required to mound their on-site waste disposal systems to overcome these limitations.
Although the fill used to mound the systems will be comprised of suitable soils, it is possible that the foreign soils will absorb moisture from the existing soils on this site, a phenomenon referred to as capillary fringe affect. This phenomenon can cause those portions of the fill which come in direct contact with the existing soils on the site to lose their filtration capabilities. Unless the fill becomes saturated from other sources, it is unlikely that capillary fringe affect will render the filtration process ineffective. The effects of capillary fringe affect can be lessened by mixing fill with soils found on the site, a practice undertaken by contractors when installing on-site waste disposal systems. In addition, increasing the amount of fill used to mound the system would decrease the potential affects of this phenomenon. 9/
Floridan Aquifer Water Quality.
In some areas of the Green Swamp, the Floridan Aquifer is actually considered a surficial aquifer since no confining layers of soil or clay separate the subsurface water from the Floridan Aquifer. These areas would typically be characterized as areas with high recharge capabilities (or high potential for contamination). However, throughout the project site, a confining layer exists which is composed of clayey sands which have a very low permeability. Therefore, there is relatively little interaction between the surficial aquifer and the Floridan Aquifer on this particular site. For this reason, the use of individual on-site waste disposal systems on this site would pose no significant risk to the water quality of the Floridan Aquifer.
Surficial Aquifer and Surface Water Quality.--
As for the surficial aquifer and surface water quality, Chapter 10D-6, Florida Administrative Code, requires on-site waste disposal systems be located at least 75 feet from waterbodies. Normally, and when the systems are operating properly, this assures that adequate filtration and decomposition occurs before wastewater reaches surface waters on or near the site. But, in the case of the Crowder proposal, it is necessary to consider that at least some of the mounded systems will be subjected to flooding and will become saturated. Even based on the analysis by Crowder's engineers, 51 of the lots in Paradise Country Estates are entirely flood prone; there is no place to put an OSDS on those lots that is not flood prone. If a "detailed study" had been done, it is possible that more
lots would be entirely within the flood hazard zone. Other lots not entirely within the flood zone may not be able to accommodate an OSDS on the part of the lot not within the flood zone.
If the OSDS mound is saturated during flood conditions, the system will fail, and untreated waste, or inadequately treated waste, will be released into the surface flood waters. This waste water will move laterally across the project site. Roots may absorb some nitrates or other organic compounds; 10/ otherwise, the waste water and its constituents will remain in the surface water. Lateral movement across the site generally will be slow, as the site is relatively flat. Some of the waste water and its constituents will get into the surficial aquifer. There are ditches or canals alongside and on the site that will direct the rest of the surface water into Pony Creek and other tributories of the Withlacoochee River, an Outstanding Florida Water approximately three and a half miles to the north.
The Department of Environmental Regulation issued a dredge and fill permit for the project's road network's impact on wetlands on the site. But it did not pass on the use of OSDS in the individual lots. It also erroneously referred to the Withlacoochee as a natural Class III, instead of an Outstanding Florida Water. See F.A.C. Rule 17-302.700(9)(i).
The Southwest Florida Water Management District (SWFWMD) issued a surface water management permit for the project. In evaluating a permit application, SWFWMD considers surface water quality. But the focus of SWFWMD's inquiry is the pre- and post-development peak flows. Also, when it considers water quality, SWFWMD considers the impact of site alteration on water quality, not the impact of the use of OSDS on the site. In addition, the Crowder project was reviewed under special criteria for low-density rural subdivisions that do not require the submission of as much information. It was not clear from the evidence precisely how SWFMD evaluates water quality under those criteria.
For these reasons, based on the evidence, it cannot be said that the Crowder project's OSDS will be meet the minimum standard of being "located to avoid impairment to them or contamination from them during flooding," as required by Section 5-1(6) of Polk County Flood Protection and Surface Water Management Code, or that the project will "protect the normal . . . quality of ground and surface water . . . necessary for the protection of resources of state and regional concern," as required by Policy 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Finally, the project will not "protect or improve existing ground and surface-water quality," as required by Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan.
Other Appeal Issues.
Except as set forth above, the Crowder development did not violate the 1985 comprehensive plan and Flood Protection and Surface Water Management Code provisions cited in the DCA Petition.
Agency Practice - Other Development in the Area.
As previously described, Evans Acres, to the west of the Crowder site, was approved by DCA in 1983. (See Finding 10, above.) As approved, it was comprised of 48 lots on approximately 1,290 acres (a density of one unit per 27 acres). The original lots ranged in size from 5 to 60 acres. Unbeknownst to
the DCA, individuals apparently have since split their lots and many of the existing lots are 2 to 5 acres in size.
A proposed development known as Turkey Creek is located between the project site and Evans Acres. Turkey Creek is comprised of approximately 57 lots on 170 acres with a gross density of 1 unit per 3 acres. The physical characteristics of the Turkey Creek property, including the abundance of wetlands and floodplains, are essentially the same as the proposed project site.
DCA appealed Turkey Creek in June of 1992. However, in that case, the County had been approximately two years late in rendering the Turkey Creek development order to the DCA. Meanwhile, the developer incurred development expenses and already had constructed roads and drainage facilities for the development. The developer, the County and DCA executed a settlement agreement which allows the development to proceed according to the original construction plans, but requires homeowners to install dual septic tank systems and have their septic tanks cleaned and inspected every three years.
Several other developments, which are in the general vicinity of the project site and have many of the same physical characteristics, including Yearling Trace and Buck Hill, have been appealed by DCA. Yearling Trace is comprised of 108 units on approximately 544 acres. Buck Hill is comprised of 55 units on approximately 214 acres. Those projects were appealed by DCA in June and April, 1992. In some of these cases, the County did not timely render development orders to DCA in a timely manner. In the case of Buck Hill, the DCA had been mailed an unapproved copy of development plans in October, 1990; in early 1992, DCA contacted the County to inquire, as no County-approved development plans ever had been sent to the DCA. In many of these cases, substantial development expenses had been incurred; in some cases, roads and drainage facilities already had been constructed.
DCA decided to settle the pending appeals in which the County was late rendering the development order, and in which the developer already had constructed roads and drainage facilities, consistent with the Turkey Creek settlement. In cases where the County was late rendering the development order, but the developer had not already constructed roads and drainage facilities, the DCA determined to settle not only for stipulations to upgrade the OSDS, as in the Turkey Creek settlement, but also for requirements that a "detailed" flood zone study be done, in accordance with the FEMA requirements.
Prior to the DCA appeal, Crowder had expended approximately $31,000 in permit fees. In addition, he has incurred development costs, primarily for engineering fees and related services. Through the time of the final hearing, he had spent approximately $99,000 on engineering fees and services. (The evidence was not clear how much had been incurred by the time of the DCA appeal.) However, the County was not late in rendering the Crowder development order, and Crowder has not constructed roads or drainage facilities.
In view of the different circumstances in Crowder's case, DCA's prior agency practices do not compel that Crowder's development be treated in the same manner, i.e., be settled on the same terms, as the Turkey Creek and the others.
DCA has argued that FLWAC's Final Order in the case of Dept. of Community Affairs v. Narbi International Company, Inc. and Lake County, 14 FALR 3223 (1992), controls this case and requires the Crowder development order to be overturned on appeal. Narbi involved development Green Swamp ACSC, albeit in Lake County.
Factually, there are many differences between Narbi and this case. The Narbi development order was a rezoning from agricultural with a residential density of up to one unit per five acres to a residential planned unit development (PUD) zoning with a density of one unit per 1.35 acres. Also, Lake
County's comprehensive plan had an "urban containment policy," which DCA equated with its non-rule policy preventing "urban sprawl" or "leap-frog development." Thirdly, in Narbi, it was found that a geologic fault existed on the project site which allowed a direct connection from the surficial aquifer to the Floridan Aquifer.
Because of the factual differences, Narbi does not control the outcome of Crowder's case.
Conditions for Approval.
Based on the testimony of its witnesses, DCA has proposed that, notwithstanding its deficiencies, the Crowder project can be approved if its density is lowered to between one unit per ten acres and one unit per 20 acres. The rationale of DCA's witnesses seems to be that the proposed lower density, in and of itself, would cure at least the most significant of the deficiencies.
Since the Crowder development order under review was for approval of particular road and drainage plans, the plans would have to be redrawn at the lower density and resubmitted for approval by the County subject to the final order to be entered in this case. It is not possible for the Commission to approve, on condition of lowered density, the plans that were the subject of the development order in this case.
CONCLUSIONS OF LAW
Section 380.07, Fla. Stat. (1991), provides in pertinent part:
(2) Whenever any local government issues any development order in any area of critical state concern . . . the state land planning agency may appeal the order to the Florida Land and Water Adjudicatory Commission by filing a notice of appeal with the commission.
* * *
(4) The Florida Land and Water Adjudicatory Commission shall issue a decision granting or denying permission to develop pursuant to the standards of this chapter and may attach conditions and restrictions to its decisions.
Section 380.05(16), Fla. Stat. (1991), provides: "No person shall undertake any development within any area of critical state concern except in accordance with this chapter."
Under Section 380.05(6), Fla. Stat. (1991), the state land planning agency (the Department of Community Affairs) is directed to approve the comprehensive plan and land development regulations (LDRs) of a local government that has jurisdiction over all or part of a designated area of critical state concern if it finds that the plan and LDRs comply with the Commission's principles for guiding the development of the area of critical state concern. The statute provides that no local government's comprehensive plan or land
development regulations become effective within an area of critical state concern until approved by the Department.
Section 380.0551, Fla. Stat. (1991), and the Commission's F.A.C. Rule 28-26.002 designate the Green Swamp Area of Critical State Concern. The Commission's F.A.C. Rule 28-26.003 sets out the Commission's Principles for Guiding Development in the Green Swamp, pending Department approval of Polk County's comprehensive plan under Section 380.05(6). The Commission's F.A.C. Rule Chapter 28-27 sets out LDRs for the Green Swamp that would apply pending Department approval of Polk County's LDRs.
F.A.C. Rule 28-27.007 states that the Commission's LDRs "shall be construed as being supplementary and complementary to the regulations imposed on the same lands by Polk County or any other governmental jurisdiction." This rule appears designed to make clear that, until approved by the Commission, Polk County's LDRs would be effective but that, for purposes of Chapter 380, development orders would have to comply with the Commission's F.A.C. Rule Chapter 28-27, notwithstanding compliance with the County's unapproved LDRs.
The Department promulgated F.A.C. Rule 9J-9.003 for purposes of approving Polk County's Flood Protection and Surface Water Management Code, as amended by Polk County Ordinance 85-07, as an acceptable replacement for the Commission's F.A.C. Rule Chapter 28-27. As a result, the Commission's F.A.C. Rule Chapter 28-27 no longer is applicable. See F.A.C. Rule 9J-9.002.
Polk County's Comprehensive Plan, as amended by Polk County Ordinance 85-08 (the 1985 plan) adopts the Commission's Principles for Guiding Development in the Green Swamp in its Conservation Element. (They also are articulated as purposes of the County's Flood Protection and Surface Water Management Code in Section 1-2 of the Code.) The Department promulgated F.A.C. Rule 9J-9.004 to serve as the Department's determination that Polk County's 1985 plan is in conformance with the Commission's F.A.C. Rule Chapter 28-26.
Unlike with the LDRs, F.A.C. Rules 9J-9.002 and 9J-9.004 do not specifically state that the Commission's F.A.C. Rule 28-26.003 no longer applies, but Section 380.05(15), Fla. Stat. (1991), provides for the repeal of both F.A.C. Rule 28-26.003 and F.A.C. Rule Chapter 28-27 after approval of Polk County's comprehensive plan and LDRs. Although F.A.C. Rule 28-26.003 has not been repealed, it seems clear that it no longer applies to review of development in the Green Swamp in Polk County.
Contrary to the arguments advanced by Crowder and the County, Polk County's Flood Protection and Surface Water Management Code, as amended by Polk County Ordinance 85-07 (Ordinance 85-07), does not supersede and replace Polk County's Comprehensive Plan, as amended by Polk County Ordinance 85-08 (Ordinance 85-08). Development in the Green Swamp in Polk County must be reviewed for compliance with both Ordinance 85-07 and 85-08.
The County concedes, and Crowder does not contradict, that the County never reviewed Crowder's Paradise Estates for compliance with the approved Polk County Comprehensive Plan, Ordinance 85-08. As found, the development order violates the plan, taken as a whole, to the extent that the proposed land use, density and intensity for the project was not evaluated in accordance with the provisions of the plan, in violation of Chapter 380.
As found, the development order also violates: Policy 10, Objective III, "Natural Resources," of the LUE of the 1985 Plan; Policies 10 and 14 of the
"Water Resource Objective" of the Conservation Element of the 1985 Plan; and Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code).
The DCA has suggested that the development order can be approved with the condition that density be decreased to between one unit per ten acres and one unit per 20 acres. But the development order was for approval of road and drainage construction plans. As found, the plans would have to be redrawn at the lower density and resubmitted for approval by the County subject to the final order to be entered in this case. It is not possible for the Commission to approve, on condition of lowered density, the plans that were the subject of the development order in this case.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order rescinding and denying approval for the development order in this case.
RECOMMENDED this 10th day of March, 1993, 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 10th day of March, 1993.
ENDNOTES
1/ Paragraph 18 of the DCA Petition alleges that the development order is contrary to Policy 1, Objective III, "Conservation Uses," in Part V of the LUE. But that policy was removed from the LUE by Ordinance 85-08.
2/ This Code was enacted as Ordinance 81-28 and was amended by Ordinance 85-07.
3/ The DCA Petition filed in this case erroneously cited subsection (5); the Petition was amended ore tenus at final hearing to cite the correct subsection (4).
4/ Other exhibits may have been stipulated or referenced on the record of the final hearing as being offered in evidence, but at the end of the hearing, the parties were advised to physically file any exhibits being offered. Only these exhibits were physically filed.
5/ See the preceding endnote.
6/ Paragraph 18 of the DCA Petition alleges that the development order is contrary to Policy 1, Objective III, "Conservation Uses," in Part V of the LUE. But that policy was removed from the LUE by Ordinance 85-08. See endnote 1, above.
7/ It is recognized that the County has adopted a new comprehensive plan which may adequately map land use classifications, densities and intensities of development, but the new plan has not been approved by the DCA for purposes of Chapter 380, and is the subject of proceedings under Section 163.3184(10), Fla. Stat. (Supp. 1992).
8/ This Code was enacted as Ordinance 81-28 and was amended by Ordinance 85-07. See endnote 2, above.
9/ However, surface water management is based on presumptions as to the amount of surface water that will be displaced by fill and structures on the land.
Increasing the amount of fill can have other repercussions on the project. See Policies 9 and 10, Objective III, "Natural Resources," of the LUE, and Policies
9 and 10 of the "Water Resource Objective" of the Conservation Element of the 1985 Plan.
10/ It was once assumed that a high concentration of nitrates would have only negative effects on surface waters and wetlands, such as a process referred to as eutrophication. But recent studies show that wetlands have some capability for absorbing nitrates. Some locations in Florida are even using wetlands for the primary treatment of wastewater. (Generally, when operating properly, a septic tank system would release secondary wastewater.)
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2959DRI
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.-3. Accepted and incorporated to the extent not subordinate or unnecessary.
4. The lots are not all mobile home lots. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
5.-11. Accepted and incorporated to the extent not subordinate or unnecessary.
The contamination referred to in the last sentence consists primarily of nitrates, some of which is absorbed by plant roots. Most of the other contaminants are treated to acceptable levels in a properly functioning system. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
As to the third to last sentence, although some wastewater eventually may reach the Floridan Aquifer, further filtration treatment will take place as it slowly passes through the confining layer. The last two sentences are rejected as contrary to facts found and to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
14.-16. Accepted and incorporated to the extent not subordinate or unnecessary.
As to the last sentence, the "actual impact" would remain "unknown" even after a "detailed study," but a "detailed study" would best predict the extent of the 100-year flood plain. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
First sentence, accepted and incorporated. Second sentence, rejected as contrary to facts found and to the greater weight of the evidence.
Accepted and incorporated to the extent not subordinate or unnecessary.
The nitrates may or may not be "deleterious" to wetlands, depending on the nutrient load. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected in that anaerobic digestion takes place in the tank; aerobic digestion takes place in the drainfield. (The proposed finding has it backwards.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Conclusion of law.
24.-25. Accepted and incorporated.
Rejected as contrary to the greater weight of the evidence, as reflected by the absence of such a finding of fact.
Accepted and incorporated.
The use of mounded septic tanks is a function of the water table, not the land use. Otherwise, all but the last sentence is generally accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence, as reflected by the absence of such a finding of fact.
29.-42. Accepted and incorporated to the extent not subordinate or unnecessary.
Last sentence, rejected as contrary to facts found and to the greater weight of the evidence.
Accepted and incorporated.
Rejected as irrelevant. No public facilities, such as sewer, are involved in the proposed project.
In part, rejected as irrelevant. ("Proper" or "sound" growth management is not the issue; the issue is compliance with the County's 1985 comprehensive plan.) Third sentence is accepted and incorporated.
Rejected in large part as irrelevant. (The issue no longer is framed by the "Principles for Guiding Development"; they have been replaced, and the issue is compliance with the County's 1985 comprehensive plan and its Flood Protection and Surface Water Management Code.) Last two sentences, rejected as contrary to facts found and to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Crowder's Proposed Findings of Fact.
1.-7. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law.
8. Rejected as contrary to facts found and to the greater weight of the evidence to the extent that it infers complete compliance with the Flood Protection and Surface Water Management Code. Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary.
9.-10. Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law.
Conclusions of law.
13.-15. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law.
Conclusions of law.
In large part, conclusions of law. Rejected as contrary to facts found and to the greater weight of the evidence that the County has no authority to review land use, density and intensity of projects proposed in the Green Swamp ACSC for compliance with the 1985 comprehensive plan. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law.
Conclusions of law.
19.-23. The density proposed in Narbi was one unit to 1.35 acres; it was one unit per 1.4 acres when rounded to the nearest tenth. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law.
24. Accepted but subordinate and unnecessary.
25.-26. Accepted and incorporated to the extent not subordinate or unnecessary.
27. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. (Another issue regarding flood plain delineation is framed by Policy 10 of Objective III, "Natural Resources," of the LUE.)
28.-30. Accepted and incorporated to the extent not subordinate or unnecessary.
31. Rejected as not proven that the methodology produced a "conservative assessment," compared with a "detailed study." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
32.-33. Rejected as contrary to facts found, or as subordinate to facts contrary to those found, to the extent that it states or infers that placing OSDS, mounded or not, in the flood plain complies with Section 5-1(6) of the Code. (It also violates parts of the 1985 comprehensive plan.) Otherwise, in parts accepted and incorporated
34.-53. To the extent that these refer to the Principles for Guiding Development, strictly speaking they are irrelevant. See Conclusions of Law. However, some of the Principles for Guiding Development are the same as, or similar to, relevant considerations and, to this extent, many are nonetheless accepted and incorporated to the extent not subordinate or unnecessary. The exceptions include:
Parts rejected. First sentence, argument. Third sentence, the characterization of the lateral movement as "extremely" slow, especially if it also is supposed to describe the movement during flood conditions, not proven and contrary to the greater weight of the evidence. Fifth sentence, inference that wetlands on the site will absorb all nitrates and other organic compounds, and do so without adverse effects on the wetlands, not proven and contrary to the greater weight of the evidence. Eighth sentence, inference that the 75 foot buffer is effective regardless whether the drainfield is saturated, not proven and contrary to the greater weight of the evidence. Ultimate and penultimate sentences, not proven and contrary to the greater weight of the evidence.
Parts rejected. Second sentence, not proven and contrary to the greater weight of the evidence. Rest, inferences that DER and SWFWMD passed on the water quality issues posed by the use of OSDS, and last sentence, not proven and contrary to the greater weight of the evidence.
Inference that the project complies with the Flood Disaster Protection Act of 1973, despite the lack of a "detailed study," rejected as not proven and contrary to the greater weight of the evidence.
Penultimate sentence, accepted and incorporated. The rest, rejected as argument, conclusions of law, and as being subordinate.
Third sentence, rejected as not proven and as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. However, inconsistency with one particular provisions of the plan is not the relevant inquiry, as all of the provisions of the plan must be considered together, as a whole.
Last sentence, rejected as not proven and as contrary to the greater weight of the evidence. Some of the rest, rejected as argument, conclusion of
law and as being subordinate. The rest, generally accepted and incorporated to the extent not subordinate or unnecessary.
All of the provisions of the plan must be considered together, as a whole. However, generally accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as irrelevant. (The policy was deleted by the 1985 amendment.)
Generally, accepted and incorporated to the extent not subordinate or unnecessary.
Last sentence, rejected as not proven and as contrary to the greater weight of the evidence. Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary.
County's Proposed Findings of Fact.
A.1.-C.3. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law.
C.4. Conclusions of law.
D.1.-D.22. To the extent that these refer to the Principles for Guiding Development, strictly speaking they are irrelevant. See Conclusions of Law. However, some of the Principles for Guiding Development are the same as, or similar to, relevant considerations and, to this extent, many are nonetheless accepted and incorporated to the extent not subordinate or unnecessary. The exceptions include:
Last sentence, rejected. Only the Floridan Aquifer is protected by the confining layer, not the surficial aquifer.
See B.51., Crowder's Proposed Findings, above.
See B.52., Crowder's Proposed Findings, above.
See B.53., Crowder's Proposed Findings, above.
Second sentence, rejected as not proven and as contrary to the greater weight of the evidence. Rest, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and generally incorporated to the extent not subordinate or unnecessary. However, the second sentence, particularly, is subordinate to facts contrary to those found.
E.4.-E.6. Accepted and incorporated to the extent not subordinate or unnecessary.
E.7. Last sentence, first paragraph, and first and last sentence, second paragraph, rejected as not proven and as contrary to the greater weight of the
evidence. Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary.
First, fourth, sixth and eighth sentences, rejected as not proven and as contrary to the greater weight of the evidence. (Review versus the 1985 comprehensive plan was required.) Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary.
Conclusion of law.
Rejected as not proven and as contrary to the greater weight of the evidence.
COPIES FURNISHED:
Terrell K. Arline, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Cecelia Bonifay, Esquire Leslie S. Campione, Esquire
113 West Main Street Tavares, Florida 32778-0039
Timothy F. Campbell, Esquire Assistant County Attorney Post Office Box 60
Bartow, Florida 33830
David K. Coburn, Secretary
Fla. Land & Water Adjudicatory Commission Executive Office of the Governor
Attn: Kelly Tucker Room 426
311 Carlton Building Tallahassee, Florida 32301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit to the Florida Land and Water Adjudicatory 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 Florida Land and Water Adjudicatory Commission concerning its rules on the deadline for filing exceptions to this Recommended Order.
| Issue Date | Proceedings |
|---|---|
| Jun. 06, 1996 | Final Order of Dismissal filed. |
| Mar. 24, 1993 | (Petitioner) Exceptions to Recommended Order filed. |
| Mar. 10, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 12/15-18/92. |
| Feb. 17, 1993 | (Respondent) Motion for Extension to File Recommended Order w/(unsigned) Order Granting Extension of Time; Notice of Filing w/(unsigned) Recommended Final Order; (1) computer disk filed. |
| Feb. 16, 1993 | Department of Community Affairs` Proposed Recommended Order; Department of Community Affairs` Memorandum of Law in Opposition to Motion in Limine; Computer Disk (1) filed. |
| Feb. 16, 1993 | (Respondent) Motion Requesting Waiver of Rule 22I-6.031(3); (Proposed) Recommended Order; Respondent Robert Crowder`s Closing Argument; Mini computer disk filed. |
| Jan. 27, 1993 | Transcript (Volumes 1-6) & Attachments filed. |
| Dec. 29, 1992 | Exhibits w/Cover ltr & Robert Crowder`s List of Exhibits and Objections filed. |
| Dec. 21, 1992 | Subpoena Duces Tecum w/Affidavit of Service filed. (From Terrell K. Arline) |
| Dec. 17, 1992 | Subpoena Duces Tecum w/Affidavit of Service filed. (from Terrell K. Arline) |
| Dec. 15, 1992 | 1st Amended Pretrial Stipulation (filed with Hearing Officer) filed. |
| Dec. 15, 1992 | Notice of Taking Deposition filed. (From Cecelia Bonifay) |
| Dec. 15, 1992 | Notice of Taking Deposition filed. (From Cecelia Bonifay) |
| Dec. 14, 1992 | Motion in Limine filed. |
| Dec. 11, 1992 | Motion in Limine (filed by C. Bonifay) filed. |
| Dec. 08, 1992 | Pretrial Stipulation w/Exhibits A-E filed. |
| Dec. 07, 1992 | (Respondent) Motion in Opposition to Request for Official Recognition filed. |
| Dec. 04, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Nov. 25, 1992 | Respondent, Robert Crowder`s Request for Production of Documents to the Department of Community Affairs; Respondent, Robert Crowder`s Notice of Serving Request to Produce filed. |
| Nov. 23, 1992 | Respondent, Robert Crowder`s Notice of Service of Response to Department of Community Affairs` Request to Produce filed. |
| Nov. 23, 1992 | Respondent, Robert Crowder`s Notice of Service of Answers to Department of Community Affairs` First Set of Interrogatories w/Department of Community Affairs` Interrogatories to Respondent, Carl C. Warnock filed. |
| Nov. 19, 1992 | (Petitioner) Request for Official Recognition w/Final Order filed. |
| Nov. 18, 1992 | Department of Community Affairs` Request for Production of Documents to Respondent, Polk County; Department of Community Affairs` Response to Respondent`s Interrogatories; Department of Community Affairs` Interrogatories to Respondent, Polk County; Depart |
| Nov. 12, 1992 | (Petitioner) Status Report filed. |
| Nov. 12, 1992 | (Respondent) Notice of Taking Deposition filed. |
| Nov. 05, 1992 | (Respondent) Notice of Cancellation of Depositions filed. |
| Oct. 16, 1992 | (Petitioner) Status Report filed. |
| Oct. 15, 1992 | Department of Community Affairs` Request to Produce; Department of Community Affairs` Notice of Serving Discovery Requests filed. |
| Oct. 15, 1992 | Notice of Service of Respondent, Robert Crowder`s Second Set of Interrogatories to Petitioner, Department of Community Affairs filed. |
| Jul. 06, 1992 | Department of Community Affairs` Notice of Service of Answers to Robert Crowder`s First Set of Interrogatories w/Respondent, Robert Crowder`s First Set of Interrogatories to Petitioner, Department of Community Affairs filed. |
| Jun. 23, 1992 | Prehearing Order sent out. |
| Jun. 23, 1992 | Notice of Hearing and Requirement for Status Report sent out. (hearing set for 12-15-92; 10:00am; Bartow) |
| Jun. 23, 1992 | Order Granting Leave To Amend Answer sent out. (Motion granted) |
| Jun. 01, 1992 | Notice of Service of Respondent, Robert Crowder`s First Set of Interrogatories to Petitioner, Department of Community Affairs w/Respondent,Robert Crowder`s First Set of Interrogatories to Petitioner, Department of Community Affair s filed. |
| Jun. 01, 1992 | (Respondent) Motion for Leave to Amend Answer; Amended Answer to Petition for Appeal of Development Order filed. |
| May 26, 1992 | Notice of Assignment and Initial Order sent out. |
| May 21, 1992 | Notification card sent out. |
| May 14, 1992 | Agency Referral letter; Department of Community Affairs` Notice of Appeal; Department of Community Affairs` Petition for Appeal of Development Order; Answer to Petition for Appeal of Development Order; Notice of Informal Conference filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 30, 1994 | Agency Final Order | |
| Mar. 10, 1993 | Recommended Order | DO for 356 unit subdivision on 1280 acres in Green Swamp ACSC; OSDS (septic systems) didn't consider density and intensity; Vs compensation plan and Land Development Regions. |
