_/G4F 19-77 Ay’ DCA FINAL ORDER NO. DCA99-GM-057A STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS LOST TREE VILLAGE CORPORATION, Petitioner, ae S. DOAH Case No. 90-5021GM: Li vs. a a INDIAN RIVER SHORES and the ; ms DEPARTMENT OF COMMUNITY AFFAIRS, ~ -- Respondents. a LOST TREE VILLAGE CORPORATION, Petitioner, DOAH Case No. 92-6784GM vs. CITY OF VERO BEACH and the DEPARTMENT OF COMMUNITY AFFAIRS, Respondents. — / FINAL ORDER This matter involves petitions filed by Lost Tree Corporation (“Lost Tree”) which challenge the findings of the Department of Community Affairs (“the Department’’) that the comprehensive plans adopted by the City of Vero Beach (“City”) and the Town of Indian River Shores (“Town”) are “in compliance,” as that term is defined in Subsection 163.3184(1)(b), Florida Statutes (“F.S.”). After the petitions were filed, the cases were consolidated by order of the Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings (‘DOAH”). A single proceeding regarding both plans was held under Subsection 163.3184(9), F.S. DCA FINAL ORDER NO. DCA.99-GM-057A The ALJ held a final administrative hearing and entered a Recommended Order which was forwarded to the Department of Community Affairs (“the Department”) for further disposition pursuant to Subsection 163.3184(9), F.S. Lost Tree, the Town, and the Department filed exceptions to the Recommended Order. Lost Tree also filed responses to the exceptions filed by the Town and the Department. The ALJ recommended that a final order be entered finding the City’s plan in compliance. He also recommended that the Town’s plan be found not in compliance because of his finding and conclusion that Policy 1.1.1.6 was inconsistent with the State Comprehensive Plan. In its Exceptions to the Recommended Order, the Department’s legal counsel argued that the ALJ erred by not construing the State Comprehensive Plan as a whole in reaching that conclusion, as required by Subsection 163.3177(10)(a), F.S. The Secretary of the Department agreed with that exception and entered an Order of Remand in which the ALJ was requested to conduct further proceedings as necessary to evaluate consistency of the Town’s comprehensive plan with the State Compreherssive Plan construed as a whole. The ALJ accepted the remand and entered a Supplemental Recommended Order in which he concluded “that Policy 1.1.1.6 of the Town’s plan is not ‘in compliance’ because it is inconsistent with the state comprehensive plan...” Exceptions to the Supplemental Recommended Order were filed by the Town and by the Department. Lost Tree filed responses to those exceptions, along with a motion to extend the time to file those responses. The deadline to file responses had already expired, but the Town and the Department did not oppose the requested extension of time. As the motion is unopposed and DCA FINAL ORDER NO. DCA99-GM-057A the request is directed at a non-jurisdictional deadline, the motion is granted. Following issuance of the Supplemental Recommended Order, the parties engaged in lengthy settlement negotiations and, by mutual consent, extended the deadline for final agency action. The parties no longer are actively discussing settlement and now await entry of the appropriate orders. On November 7, 2000, the Town filed a Request for Judicial Notice in which it asked the Department to take judicial notice of a Nineteenth Judicial Circuit Court order granting Lost Tree’s quiet title action against the Board of Trustees of the Internal Improvement Trust Fund for submerged lands around some of the islands located within the Town. The Town maintains that the decision is relevant to the instant case “with regard to rules of the Board of Trustees of the Internal Improvement Trust Fund as to what permits, permissions, and easements were allowed to be given to the Trustees over sovereign submerged lands with regard to the development of unbridged islands.” In the Request’s concluding paragraph, the Town urges that the ALJ’s findings with regard to Rules 18-21.003.-.004, Florida Administrative Code, are inapplicable because the court ruled that the submerged lands were in private ownership. The: Town does not identify the specific findings it wishes the Department to reject or the legal authority under which the Department may reject those findings. It also has not moved to reopen the record or for a second remand to DOAH. No response to the Request for Judicial Notice has been filed with the Department. If the Department were to grant the Town’s Request, that act would equate with reopening the record and overturning findings made by the ALJ without benefit of an evidentiary DCA FINAL ORDER NO. DCA®9-GM-05 7A hearing as to the final judgment’s effect on the issues in this case. Such a ruling would be fundamentally unfair and would be beyond the Department’s legal authority. The Department considered the option of remanding the matter to DOAH, however this option was rejected because the final judgment does not apply to all of the bridgeless islands within the Town’s boundaries. Accordingly, the ALJ’s findings regarding Rules 18-21.003-.004 would still apply to other islands within the Town whose boundaries were not under scrutiny in the Nineteenth Judicial Circuit Court case. The Request for Judicial Notice is denied. Burden of Proof Sections 163.3184(9)and(10), Florida Statutes establish the burden of proof on the person challenging a local government’s adopted comprehensive plan. Two standards of proof are established under the Act. The appropriate standard is determined by whether the proceeding arises after the initial determination by the Department that a plan is or is not ‘in compliance.’ In these cases, the Department determined the plans of the City and Town to be ‘in compliance.’ Therefore, Section 163.3184(9), Florida Statutes, determines the standard of proof. According to Section 163.3184(9), Florida Statutes, the local plan or plan amendment shall be determined to be ‘in compliance’ if the local government’s determination of compliance is fairly debatable. Therefore, Lost Tree is required to prove “beyond fair debate” that the challenged provisions of the plans of the City and Town are not in compliance. STANDARD OF REVIEW The Administrative Procedure Act, Chapter 120, F.S., directs state agencies to accept the ALJ's findings of fact and conclusions of law except under certain limited circumstances. pepe mm era) NS 8 I ae DCA FINAL ORDER NO. DCAD9-GM-05 7A Section 120.57(1)(J), F.S., provides the standard of review of findings of fact in the Recommended Order. It provides, in relevant part: Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. Section 120.57(1)(), Fla. Stat. (2000). The Department cannot reweigh the evidence considered by the ALJ. The Department cannot reject findings of fact made by the ALJ unless there is no competent, substantial evidence in the record to support the findings. See Heifetz v. Department of Business Regulation, 475 So0.2d 1277 (Fla. 1" DCA 1985), Bay County School Board v. Bryan, 679 So.2d 1246 (Fla. 1" DCA 1996), construing a provision substantially similar to Section 120.57(1)(Z), F.S. (2000). The Department may reject or modify the ALJ's conclusions of law, but only those, _conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which its has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Section 120.57(1)(), Fla. Stat. (2000). The Department has substantive jurisdiction over the conclusions of law herein stricken. The Department finds that its revised conclusions of law are as, or more reasonable than, those rejected or modified. In each ruling on exceptions, the Department further explains its rationale for the acceptance, rejection, or revision of the challenged conclusion of law. 5 Findings of Fact 152 and 153, and Conclusions of Law 218, 224, 226, 230, and 231 DCA FINAL ORDER NO. DCA99-GM-05 7A RULINGS ON EXCEPTIONS The Town’s Exceptions to the Recommended Order These Findings of Fact and Conclusions of Law relate to Town Policy 1-1.1.6, which provides in relevant part: No development shall occur on unbridged islands within the Indian River Lagoon pursuant to Policy 1-2.6. Unless the federal and state permitting agencies having jurisdiction approve road and bridge permits required to establish satisfactory access and grant dredge and fill permits, then in such case Policy 1-2.6.2 cites performance standards which provide a management approach that allows for the reasonable use of such isolated islands assuming compliance with all other applicable laws and ordinances. The policy mandates approval of the road and bridge permits by the state and /or federal agencies having jurisdiction prior to granting of final Town pian approvals, development orders, or permits. Finding of Fact 152 states that the data and analysis support this restriction. That finding further states that “[tJhe evidence, however, proved that access to the Inner and Outer Islands located within the Town’s jurisdiction cannot be provided by bridge.” Based on the perceived inability to build a bridge under any circumstance, the ALJ proceeded to determine in Findings of Fact 152, 153, 182, and 183 and Conclusions of Law 218, 224, 226, 230, and 231 that the Town’s Policy 1-1.1.6 was not supported by adequate data and analysis, and was inconsistent with Goal (15)(a) of the State Comprehensive Plan. That goal, contained in Subsection 187.201(15)(a), Florida Statutes, states: Florida shall protect private property rights and recognize the existence of legitimate and often competing public and private interests in land use regulations and other government action. DCA FINAL ORDER NO. DCA99-GM-057A Findings of Fact 150, 151, and 152 support the Town’s policy of prohibiting development without bridge access. In Finding of Fact 152 the ALJ finds: Existing data and analysis concerning the impacts of hurricanes on low-lying areas and the difficulty of providing emergency services to unbridged, isolated islands support the Town’s decision to limit development of unbridged islands in the Indian River Lagoon until adequate access to the islands was arranged if such access could be provided. The evidence, however, proved that access to the Inner and Outer Islands located within the Town’s jurisdiction cannot be provided by bridge. However, the ALJ does not identify what evidence he relies on in reaching the finding that bridge access cannot be provided to islands within the Town’s jurisdiction. Upon review of the record, the finding that bridge access cannot be provided does not appear to be based on any competent, substantial evidence received into the recorcd. Rather, the finding that the Town’s policy to limit development on unbridged islands until there is bridge access is not ‘in compliance’ appears to be based on an assumption not reflected in the Recommended Order or the factual record that the state and federal permits for bridge access are not legally attainable. At one point in the final hearing, Lost Tree’s legal counsel argued that he should be allowed to ask a question of a witness because of the relevancy of a Board of Trustees rule that greatly restricts bridge access over submerged sovereign lands. (Transcript, pages 1778- 1780) However, legal argument does not rise to the level of testimony upon which findings of fact may be based and no rule citation was provided to the ALJ and other parties for further consideration on that matter. DCA FINAL ORDER NO. DCA99-G-057A What little testimony there was on this issue was sparse and does not support this finding under the competent, substantial evidence standard. Mr. Howard Landers, an expert witness for Lost Tree, was asked the general question whether there was “any possible way that Lost Tree can develop the inner islands?” without any specific connection to the bridge access issue. He simply responded “No” with no explanation, whereupon the line of questioning changed. (Transcript, page 1780) Earlier, however, Mr. Landers offered an opinion specifically on bridge access permitting and stated that “permitting is a bit more onerous” for a bridge from the inner to the outer islands, thus suggesting that there is no absolute prohibition for bridge access. (Transcript, page 1425) Les Solin, the former City Planning Director and planning consultant for the Town, testified that bridge development on the outer islands would be a “long time away” due to federal and state law. (Transcript, page 732) This testimony indicates that obtaining permits for bridge access is difficult, but not impossible. The record, therefore, lacks foundation for the critical factual finding that access cannot be provided by bridge. In light of this ruling, the consistency of Policy 1-1.1.6 with the State Comprehensive Plan, specifically Goal (15)(a), must be revisited. As there is no competent, substantial evidence in the record that bridge access cannot be provided, there also is no competent, substantial evidence to support the statements in Finding of Fact 152 that “Policy 1-1.1.6 is, in effect, an absolute bar to development” and conflicts with Goal (15)(a). In addition to this ruling, it is noted that Town Policy 1-1.1.3 is applicable to the subject properties. The policy includes a transfer of development rights provision for environmentally sensitive lands. Under that provision, development rights may transfer to “contiguous receiving 5 5am EN mine i ne 2 DCA FINAL ORDER NO. DCA99-GM-057A areas with a maximum density of no greater than one and one-half (1.5) times the applicable density designated on the Comprehensive Plan.” Even if state and federal permitting for bridge access were proved impossible, the ability to transfer development rights to other properties appears to enable the plan to meet the requirement for consistency with the State Comprehensive Plan, including Goal (15) (a). Florida courts recognize that the technique of transferring development rights can be used by a local government to provide property owners economically viable use of their property. See Glisson v. Alachua County, 558 So.2d 1030 (Fla. 1st DCA 1990); City of Hollywood v. Hollywood, Inc., 432 So.2d 1332 (Fla. 4 DCA 1983). Based on the above, the exceptions are granted and several revisions to the Recommended Order are hereby ordered. The last three sentences of Finding of Fact 152 are stricken as they are not supported by competent, substantial evidence. Findings of Fact 153 is revised to read: “Lost Tree failed to prove that Policy 1-1.1.6 conflicts with the State Comprehensive Plan when construed as a whole. Subsection 163.3177(10)(a) and Chapter187, Florida Statutes.” The first sentence in Finding of Fact 182 is revised to read: “The City’s policy does not prevent all development of islands within its jurisdiction.” Finding of Fact 183 is stricken as it is not supported by cornpetent, substantial evidence. Conclusion of Law 218 and the last sentence in Conclusion of Law 224 are stricken. Conclusion of Law 226 is revised to read: “The evidence fails to prove that either the Town or the City failed to take into consideration this goal of the State Comprehensive Plan.” Conclusion of Law 230 shall read: “Lost Tree failed to prove beyond fair debate that any provision of the Town’s Adopted Plan or the City’s Remedial Plan is inconsistent with Chapter 9J-5, Florida Administrative Code.” Conclusion of Law 231 is revised DCA FINAL ORDER NO. DCA99-GM-05 7A to read: “The evidence in these cases fails to prove beyond fair debate that the Town’s Adopted Plan or the City’s Remedial Plan is not “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes.” The rejection and revision of these conclusions of law is necessary because it would not be reasonable to adopt them in light of the above rulings on underlying findings of fact. There is no competent, substantial evidence for the factual premises of those conclusions. The Town’s Exceptions to the Supplemental Recommended Order_ Finding of Fact 3 The Town argues that there is no competent, substantial evidence to support the ALJ’s finding that the Town’s plan fails “to protect private property rights.” The ALJ’s finding assumes a series of facts not in the record. Those assumed facts cannot be reasonably inferred from the record, The first assumption is that the rules of the Board of Trustees of the Internal Improvement Trust Fund, specifically Rule 18-21.004, F.A.C., operate as an absolute prohibition to bridging. There is no competent, substantial evidence in the record to support that assumption. In fact, the rule on its face is not an absolute prohibition. See Rule 18-21.004(1)(g), F.A.C. Second, even if the Trustees’ rule was an absolute bar to bridging, it applies only where bridging will occur over sovereign submerged lands. Again, no competent, substantial evidence exists in the record regarding this issue.' There also is no evidence in the record that Lost Tree | In fact, the Town points out in its exceptions that Lost Tree had filed a quiet title action in local circuit court asserting ownership of sovereign submerged lands key to bridging to some of the islands. Losi Tree Corp. v. Board of Trustees of the Internal Improvement Trust Fund, Case No. 990093 (Fla. 19" Circuit). Lost Tree does not dispute this assertion in its Response to Exceptions to Supplemental Recommended Order. 10 DCA FINAL ORDER NO. DCA99-GM-05 7A unsuccessfully sought such an exception. There is no competent, substantial evidence upon which to find that Lost Tree’s property rights were effectively eliminated. Again, the Town points to its transfer of development rights provision in its comprehensive plan as additional information to disoute the ALJ’s finding. Further, a determination that the Town’s Comprehensive Plan “effectively eliminates Lost Tree’s property rights” is both beyond the factual record and legal jurisdiction of this proceeding. That broad statement borders on a determination of inverse condemnation, an issue which cannot be determined in this proceeding and would hinge on factual determinations not at issue herein. The exception is granted and the finding is stricken. Finding of Fact 4 The Town argues that the ALJ did not comply with the directive of the Order of Remand and the requirements of law when he failed to make supplemental findings of fact in which he considered and balanced provisions of the State Comprehensive Plan in addition to Goal 15(a). In Supplemental Finding of Fact 4, the ALJ states that the evidence proved that the cther State Comprehensive Plan goals and objectives support a limitation on the density for development on the islands, but that it also “failed to prove that those goals and policies support a total limitation on development.” There is no competent, substantial evidence upon which to support the ALJ’s findings that Policy 1-1.1.6 effectively eliminates Lost Tree’s property rights and conflicts with the State Comprehensive Plan. Based on other rulings in this order regarding Policy 1-1.1.6, there is no provision in the Town’s plan which conflicts with any provision of the State Comprehensive Plan. Thus, as a matter of law, the Town’s plan cannot be construed to be inconsistent with the State 11 DCA FINAL ORDER NO. DCAD9-GM-057A Comprehensive Plan. The Town also argues that the ALJ erroneously required the Town to balance provisions within the State Comprehensive Plan. The Town reasons that because this is a de novo proceeding, the focus on whether a local plan is in compliance lies within the four corners of the plan, not the intentions of the local governing body. The Town is correct. At issue is whether the local comprehensive plan is consistent with the State Comprehensive Plan. The Town’s ultimate decision on what to adopt into its plan is subject to de novo review. It was incumbent upon the ALJ and the Department to construe the local plan in determining whether the requisite balance with the State Comprehensive Plan was met. The ALJ’s findings are not iriconsistent with that standard, however. The exception is denied. Conclusions of Law 8, 9, 11, 12, and 13 In these exceptions, the Town adopts the arguments it raised in its exceptions to Findings of Fact 3 and 4. The above rulings as to those exceptions are adopted herein. It is further noted that Town Policy 1-1.1.3 includes a provision that protects private property rights by allowing the transfer of development rights from environmentally sensitive land to other property. Based on the rulings on the Town’s exceptions to Finding of Fact 3, the exceptions to Conclusions of Law 8, 11, 12, and 13 are granted. As those conclusions of law are not based on any findings supported by competent, substantial evidence, it would be unreasonable not to strike those conclusions. Accordingly, Conclusions of Law 8 and 13 are stricken in their entirety, and the final sentence of Conclusion of Law 11 is stricken. Conclusion of Law 12 is revised to read: The goals and objectives of the State Comprehensive Plan support the density for development of the islands at issue within the Town’s jurisdiction and the 12 DCA FINAL ORDER NO. DCA99-G91-057A limitations imposed on that development by Policy 1-1.1.6. Based on the rulings on the Town’s exceptions to Finding of Fact 4, the Town’s exception to Conclusion of Law 9 is denied. The Department’s Exceptions to the Recommended Order Finding of Fact 9 This finding states that “(t]he Town is located wholly on the Barrier Island.” The Department correctly notes that there are other areas that lie within the Town’s boundaries which do not lie on the island. The exception is granted and this portion of Finding of Fact 9 is stricken as being unsupported by competent, substantial evidence. Finding of Fact 19 This finding states: “The City is immediately to the south and southwest of the Town, partly on the Barrier Island and partly on the mainland.” The second part of that sentence is inconsistent with other findings which correctly find that there are other islands which lie within the City’s boundaries. The exception is granted and the finding is revised to read: “The City is immediately to the south and southwest of the Town.” Findings of Fact 27, 34, 43, 53, 59, 67, 75, 76, 186, and 187; Conclusion of Law 210 These exceptions are directed at findings of fact that pertain to Lost Tree’s ownership of land, and to the portion of Conclusion of Law 210 which states “for undeveloped islands in which Lost Tree owns an interest...” The Department maintains that Lost Tree had the burden to prove the precise boundaries of its properties within the City and the Town because Lost Tree stated in its petitions and Amended Prehearing Stipulation that its issues were limited to areas owned by 13 DCA FINAL ORDER NO. DCA99-G-057A Lost Tree. However, the Department conceded at the final hearing that the extent of Lost Tree’s ownership was not a substantive issue. After the Department's concession, Lost Tree offered no further testimony concerning ownership. (Transcript, Vol XV, pages 1846-51) The exceptions also seem to suggest that Lost Tree must establish the extent of its property holdings even if its pleadings had not limited its issues to Lost Tree properties. In support of this contention, the Department cites Subsection 163.3164(16), F.S., which defines “parcel of land ” as: any quantity of land capable of being described with such definiteness that its locations and boundaries may be established, which is designated by its owner or developer as land to be used, or developed as a unit or which has been used or developed as a unit. The Department further notes that the term “parcel of land” is used in various sections of Chapter 163, Part II, Florida Statutes. The exceptions do not, however, identify any statute or rule that would necessitate a determination of boundaries in this particular proceeding. Based on a review of the transcript and of the Recommended Order, it appears that the ALI considered Lost Tree’s ownership of land within the City and Town boundaries only for purposes of determining whether Lost Tree had legal standing as a party. For purposes of determining whether Lost Tree was an “affected person” within the meaning of Subsection 163.3184(1)(a), Florida Statutes, the ALJ correctly held that Lost Tree need only show that it owned some amount of land within the municipalities’ boundaries, in which case the exact location and boundaries of its land holdings would be irrelevant. For purposes of establishing that Lost Tree owns some amount of land within the Town and the City in order to prove standing, DEX 8, which is a map of Lost Tree's holdings in the Indian River Islands, provides enough 14 DCA FINAL ORDER NO. DCA99-GM-057A information from which to reach the approximations in Findings of Fact 27, 34, 43, 53, 59, 67, 75, and 76. Accordingly, those findings are found to be based on competent, substantial evidence. Findings of Fact 186 and 187, and Conclusion of Law 210 are based on those underlying findings, and also are supported by competent, substantial evidence. The exceptions are denied. Findings of Fact 152, 153, 182, and 183, and Conclusions of Law 218, 224, 226, and 231 These exceptions are directed at findings of fact and conclusions of law regarding Town Policy 1-1.1.3. They are similar to the exceptions filed by the Town which are discussed and granted above. The Department’s exceptions are similarly granted. Conclusions of Law 215 and 230 In Conclusion of Law 215, the ALJ cites to data and analysis requirements. contained in 9J-5.005 (2), F.A.C. Conclusion of Law 230 states: Lost Tree failed to prove beyond fair debate that any provision of the Town’s Adopted Plan, except Policy 1-1.1.6, or the City’s Remedial Plan are inconsistent with Chapter 9J-5, Florida Administrative Code.” The Department argues that there can be no conclusion regarding consistency with any portion of Chapter 9J-5 because there was no official recognition taken of those rules, nor were they offered into evidence. Under the Department's theory, Lost Tree had the burden to place into evidence, or seek official recognition of, the two versions of Chapter 9J-5 which were in effect at the time of each plan’s adoption. (The parties agreed in the Amended Prehearing Stipulation that the law in effect at the time the Town adopted its comprehensive plan and when the City adopted its remedial amendment would apply to the respective plans. Findings of Fact 15 ree WOOO RP pm oe DCA FINAL ORDER NO. DCA$)9-GM-057A 92 and 117, respectively, note that the Town’s plan was adopted on May 16, 1990, and the City’s remedial amendment was adopted on July 21, 1992.) However, the Department’s legal counsel waived this objection at the final hearing when the City’s attorney raised the issue of the need for official recognition of Chapter 9J-5. (Transcript, Volume X, pages 1101-1102) The Department’s exceptions also suggest that the ALJ may have applied an incorrect version of Chapter 9J-5 due to the failure of any party to provide him with a physical copy of it. The only portion of Chapter 9J-5 that was discussed in the Recommended Order is Rule 9J-5.005 (2). The history of Rule 9J-5.005, as set forth at the end of that rule, states that the rule was amended on the following dates: “10-20-86, 11-22-89, 3-23-94, 5-18-94, 3-21-99.” The rule, which includes the general data and analysis requirements described in Conclusion of Law 210, indicates that it was not changed between the date the Town adopted its pian and the date the City adopted its remedial amendment. In order to clarify the record, the undersigned hereby takes official recognition of Chapter 9J-5, F.A.C.; Chapter 163, Part II, F.S.; and Chapter 187, F.S., as they were in effect on the dates the parties stipulated in the Amended Prehearing Stipulation. The exception is denied. The epartment’s Exceptions to the Supplemental Recommended Order Finding of Fact 2, and Conclusions of Law 5 and 6 The Department first takes exception to the finding that the Department should have known that by alleging the inconsistency of Policy 1-1.1.6 with Subsection 187.201(15)(a), F.S., Lost Tree intended to prove that the policy was inconsistent with the State Comprehensive Plan construed and applied as a whole. It appears that the petition’s allegations were sufficient to 16 DCA FINAL ORDER NO. DCA99-GM-057A place the parties on notice as to the issue of consistency with the State Comprehensive Plan. The exception also asserts that the finding is not in accordance with the essential requirements of the law because of the ALJ’s erroneous restatement of Subsection 163.3177(10)(a), F.S., in which he finds, in effect, that a single local comprehensive plan provision may be applied in isolation from the State Comprehensive Plan. This finding is mislabeled a finding of fact; it is more properly a conclusion of law. The Department must be guided by the true nature of a finding or conclusion, not its title. See Pillsbury v. DHRS, 705 So.2d 32 (Fla. 2d DCA 1999); Kinney v. Department of State, 501 So.2d 129 (Fla. 5*® DCA 1987). Subsection 163.3177(10)(a), F.S., requires that the entire local plan, as well as the State Comprehensive Plan, be construed and applied as a whole. This subsection states in pertinent part: (a)...For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans. Subsection 163.3177(10(a), Florida Statutes. Thus, it was erroneous for the ALJ to find that “... Lost Tree intended, by alleging that the policy was inconsistent with one goal of the state comprehensive plan, to prove that the policy was, therefore, inconsistent with the state comprehensive plan as construed and applied as a whole.” Accordingly, the second exception to Finding of Fact 2 is granted. As this portion of the finding is a misstatement of the law, it is deemed to be a conclusion of law, not a finding of fact. Based on a more reasonable interpretation of Subsection 163.3177(10)(a), F.S., this determination is revised as a conclusion of law as follows: 17 DCA FINAL ORDER NO. DCA99-GM-05 7A Although Lost Tree did not specifically allege that the Town’s plan was inconsistertt with the state comprehensive plan as construed and applied as a whole, the Department should have known that Lost Tree, by alleging that Policy 1-1.1.6 was inconsistent with one goal of the state comprehensive plan, intended to allege that the Town’s plan was inconsistent with the state comprehensive plan construed and applied as a whole. Conclusions of Law 5 and 6 are similar to Finding of Fact 2. They also hold the Department to constructive knowledge of the correct interpretation and application of the law to this proceeding despite the wording of the petition. The exceptions are denied. Consistent with the ruling on Finding of Fact 2 in the preceding paragraph, the second sentence of Conclusion of Law 6 is revised so as to afford a more reasonable and accurate interpretation of Subsection 163.3177(10)(a), F.S., as follows: Therefore, it is reasonable to find that the Department was aware that Lost Tree alleged and intended to prove that, as required by Subsection 163.3177(10){a), Florida Statutes, the Town’s plan was inconsistent with the State Comprehensive Plan as a whole. Findings/Conclusions Regarding a “Taking” of Lost Tree’s Property: Findings of Fact 3 and 4: and Conclusions of Law 7, 8, 11,12, and 13 The Department takes issue with the ALJ’s determination that Lost Tree’s property rights were effectively eliminated. As stated above in the rulings on Findings of Fact 152, 153, 182, and 183, and Conclusions of Law 218, 224, 226, 230, and 231 of the Recommended Order, there is no competent, substantial evidence that bridge access cannot be provided to the Irmer and Outer Islands within the Town’s jurisdiction. The lack of competent, substantial evidence to support the findings in the Supplemental Recommended Order that Town Policy 1-1.1.3 failed to protect Lost Tree’s private property rights was discussed in the above ruling on the Town’s exception to 18 DCA FINAL ORDER NO. DCA®9-GM-05 7A Finding of Fact 3 of that order. For the reasons expressed in that ruling, this exception is similarly granted. Findings of Fact 3 and 4, and Conclusions of Law 7, 8, and 13 are stricken. The last sentence in Conclusion of Law 11 also is stricken. Conclusion of Law 12 is revised to read: The goals and objectives of the State Comprehensive Plan support the density for development of the islands at issue within the Town’s jurisdiction and the limitations imposed on that development by Policy 1-1.1.6. Conclusions of Law 9, 10, and 11 In these conclusions of law, the ALJ concludes that Subsection 187.101, F.S., of the State Comprehensive Plan is intended by the Legislature to provide guidance to local governments. The Department argues that those conclusions provide too narrow an interpretation of the law. In Paragraph 9, the ALJ states that the State Comprehensive Plan provides guidance to the Town, but not to Lost Tree. That is a reasonable interpretation of the law. Private property owners are not bound by the State Comprehensive Plan as local governments are in developing their comprehensive plans in order to ensure they meet the minimum criteria of Subsection 163.3184(1)(b), F.S. Conclusions of Law 10 and 11 are not as exclusionary as the Department suggests, and merely reiterate that the State Comprehensive Plan provides guidance to local governments. They do not in any way state or suggest that the State Comprehensive Plan is a useful tool only to local governments. The: exceptions are denied. (This ruling does not affect the preceding ruling on Conclusion of Law 11 in which the last sentence of that Paragraph 11 is stricken based on other grounds.) 19 DCA FINAL ORDER NO. DCA99-GM-057A Lost Tree’s Exceptions to the Recommended Order Finding of Fact 26 Lost Tree challenges the last sentence in this finding which describes a small, unnamed island as being “similar in characteristics to the Inner and Outer Islands, except that it is much smailer.’ Lost Tree contends that the vegetation on and around the small island is very different from the vegetation found on and around the other islands; the only evidence as to similarity between the islands is the nature of their creation through dredging of the Intracoastal Waterway. There is evidence in the record to show that the islands share common vegetation and have similar soil characteristics. On page 2-156 of DEX 4, all of the spoil islands within Indian River County are described as having some amount of mangrove vegetation, Australian pine, and Brazilian pepper vegetation. Each of the spoil islands is characterized in the applicable plan’s data and analysis as predominantly consisting of quartzipsamment soil. (LEX 33, Figure 1-4; LEX 45, Map 1-12; and LEX 40) The ALJ's general statement regarding the characteristics of the smaller island is supported by competent, substantial evidence. The exception is denied. Finding of Fact 41 Lost Tree takes issue with the portion of this finding which states “[t]he lagoon is partly shoaled and partly filled with mangrove.” According to Lost Tree, the record reflects that the lagoon is fringed with mangroves, not partly filled with them. On page 24 of the Environmental Assessment of Indian River Lagoon Properties the description of Alligator Island includes the statement that “...the southern end of the parcel contains an isolated lagoon which is fringed with Red, White, and an occasional Black 20 DCA FINAL ORDER NO. DCA99-G-057A mangrove.” (DEX 22) The report does not describe the lagoon as partly filled with mangroves. As there is no evidence that the waters of the lagoon are partly filled with mangroves of any kind, at any time, the finding that the lagoon is “partly filled with mangrove” is not supported by competent, substantial evidence. The exception is granted and the third sentence in this finding is revised to read: “The lagoon is partly shoaled.” Finding of Fact 65. Lost Tree files an exception to the portion of Finding of Fact 65 which states that island IR-29 consists “mainly of Brazilian pepper, Australian pine, and mangroves.” Lost Tree objects to the inference that mangroves comprise a main constituent of the vegetation on IR-29, because the evidence shows that mangroves comprise only ten percent of the vegetation. The record citation provided by Lost Tree, DCA Exh. 4, page 2-124, states in pertinent part: Dominant Terrestrial Vegetation Brazilian pepper (35%), red mangrove (10%), Australian pine (10%), black mangrove (8%), Florida privet (6%), 61 species total Based on this information, red and black mangroves combined comprise eighteen percent of the 61 terrestrial species on the island, not ten percent as argued by Lost Tree. The total of those mangroves, Brazilian pepper, and Australian pine represent a total of 63 percent of the island’s terrestrial species. It is not incorrect to state that the island consists mainly of those three types of vegetation. The exception is denied. Finding of Fact 66 Lost Tree argues that this finding incorrectly determines that seagrasses exist along the western shore of island IR-29. This exception and its supporting record citation to a map entitled 21 DCA FINAL ORDER NO. DCA99-GM-057A “Spoil Island IR29” refer to IR-29. However, Finding of Fact 66 discusses only island IR-28. It does not mention IR-29. The exception is denied. Finding of Fact 73 Lost Tree disputes the first sentence in this finding which states: Vegetation on the Fourth Outer Island consists mainly of Brazilian pepper, Australian pine, and mangroves. According to Lost Tree, this sentence gives the misleading impression that mangroves are a main constituent of the vegetation because the record shows “this island consists mainly of Brazilian pepper and Australian pine, and that mangroves only exist in clusters along the shoreline, 15' deep at most.” Regardless of how sparse the mangrove vegetation is on the island, its combination with Brazilian pepper and Australian pine (which Lost Tree concedes in its exception are the two main constituents of the vegetation) makes it part of a dominant vegetation triumvirate. Furthermore, this portion of the finding is not misleading as to the lushness of mangrove vegetation when construed with the following sentence in the same finding which reads: “Mangroves exist in clusters along the shore of the island.” The exception is denied. Finding of Fact 82 Lost Tree takes exception to the first and last sentences in the following finding: Vegetation on Fritz Island consists mainly of Brazilian pepper, Australian pine, and mangroves. A large shoal is located along the south western side of the island. Extensive seagrasses exist in this area. As to the first part of its exception, Lost Tree argues the record does not “support an inference that mangroves are a main constituent of the vegetation on Fritz Island.” This exception 22 DCA FINAL ORDER NO. DCA99-GM-05 7A is based on a misreading of the finding. The fact that mangroves exist only along the shoreline, as Lost Tree notes the record shows, does not exclude mangroves from being considered along with Brazilian pepper and Australian pine as part of a grouping of dominant vegetation on the island. The finding does not suggest that mangroves alone are a main constituent of vegetation as Lost Tree contends. The exception to the last sentence also is based on an incorrect reading of the finding. Lost Tree misreacls that sentence as referring to extensive seagrass beds around Fritz Island. It argues that “[t]he only competent substantial evidence states that only the southwest portion of the submerged shoreline contains sea grass beds, but the remaining submerged land adjacent to the island is unvegetated.” The second sentence in Finding of Fact 82 makes clear that the reference to exterisive seagrasses applies only to the south western portion of the island, not the entire island. The exception is denied. Findings of Fact 85 and 86 Lost Tree takes exception to the statements in Finding of Fact 85 that Hole in the Wall Island, North Sister Island, South Sister Island, and Gifford Island share “very similar characteristics to the Inner and Outer Islands,” and “[t]he most significance difference between these islands and those in the Outer and Inner Islands is that they all are significantly smaller islands.” The exception to Finding of Fact 86 raises the same objection to those statements being made about Little Prang Island, IR-32, IR-33, and several other small islands that lie within the City’s boundaries. In these findings, the ALJ does not indicate which characteristics he is comparing when he 23 DCA FINAL ORDER NO. DCA®9-GM-057A states that the islands share very similar characteristics. The information contained in DEX 4 and 22 shows that each island has some amount of mangrove vegetation. On page 2-1 56 of DEX 4 it is noted that all of the spoil islands in Indian River County have some amount of mangroves, Australian pine, and Brazilian pepper. Each of the spoil islands also consists of a large percentage of quartzipsamment soil. (LEX 33, Figure 1-4, LEX 45, Map 1-12; and LEX 40) As there is competent, substantial evidence to support the exception as to the first sentences in Findings of Fact 85 and 86 is denied. Lost Tree’s exceptions to the findings as to size in Findings of Fact 85 and 36 is well taken only as to Finding of Fact 85. As Lost Tree correctly notes, Hole in the Wall Island is not significantly smaller than the Outer and Inner Islands. On page 11 of DCA Exhibit 22 that island is described as having a total tract acreage of 162.3 acres. That figure is larger than the acreage figures of some of the Outer and Inner Islands described in earlier findings. The record supports findings that the other islands described in Findings of Fact 85 and 86 are significantly smaller than the Outer and Inner Islands. There is no competent, substantial evidence to support the finding as to sizes in Finding of Fact 85. The exception is granted as to the second sentence in Finding of Fact 85 and denied as to the second sentence in Finding of Fact 86. The second sentence in Finding of Fact 85 is revised to read: With the exception of Hole in the Wall Island, the most significant difference between these islands and the Inner and Outer Islands is that they are all significantly smaller islands. Finding of Fact $7 Lost Tree contends that there is no competent, substantial evidence to support the second 24 DCA FINAL ORDER NO. DCA99-GM-057A sentence in this finding relating to Prang Island which reads: Therefore, the City did not believe that it could reduce the already approved development of the island through the land use designation for the island acopted in the City’s plan. In support of this exception Lost Tree argues that the only evidence in the record to support this finding is the City Attorney’s concern that the City could not apply ordinance R1AAA to that island because of “equitable estoppel” concerns. Lost Tree further maintains that the City Attorney's legal opinion was incorrect. The validity of that opinion is not relevant to this finding, however. The finding merely seeks to explain why the City chose not to reduce density on the island by land use designation. However, Lost Tree is correct that the finding is not supported by competent, substantial evidence. Former City Mayor Macht testified that density was not an issue for Prang Island for the proposed plan, and that the City had to approve the preliminary plat because of its grandfathered status. (Transcript Vol. 1, pages 75-84) There was no testimony or other evidence that the reason density was not an issue at the comprehensive pian level was because the City believed that approval of the preliminary plat would bind the City’s hands as to land use designations for the island. The exception is accepted and the second sentence in this finding is stricken. Findings of Fact 134, 135, and 136 Finding of Fact 134 describes environmentally important features on the Inner and Outer Islands, and notes that there may also be other environmentally sensitive areas in the Town. Finding of Fact 134 determines that those features alone would justify the land use densities on 25 DCA FINAL ORDER NO. DCA99-GM-057A the islands. It further finds that the fact the islands do not have any available access or transportation linkage also would provide a basis for those land use designations. In Finding of Fact 136 the ALJ finds that both of those conclusions are supported by data and analysis. Lost Tree’s collective exception to these three findings is based on its position that the “Residential Conservation/Environmentally Sensitive Lands” land use category is overly restrictive. The exception does not argue that there is insufficient evidence to support the statements in Finding 134 as to the existence of environmentally important features on the Inner and Outer Islands and possibly elsewhere in the Town. Instead, the arguments are directed at the conclusions in Findings of Fact 135 and 136. Lost Tree first argues that there are similar environmental features found in other portions of the Town which do not have such land use and density restrictions, and, therefore, the islands should not be given greater land use protections than what is found elsewhere in the Town. There are no findings of fact to support Lost Tree’s premise that there are similar features elsewhere in the Town. The Department cannot make any such additional findings. Further, that argument fails to recognize the possibility that there could be more than one land use approach to certain environmental limitations. A local government does not necessarily have to adopt the same approach to similar situations throughout its jurisdiction. Contrary to Lost Tree’s assertions, there is competent, substantial evidence to support the findings. The Town plan’s data and analysis (LEX 45, especially pages I-18 through I-20) identifies environmental features on the islands. It is not necessary that the data and analysis also show the potential impacts that various land use controls would have on those features, as Lost 26 DCA FINAL ORDER NO. DCA99-GM-057A Tree argues. Once a local government identifies environmental features which are required by Chapter 9J-5, F.A.C., to be protected in the plan, it need not quantify potential impacts; rather, its task is to design plan provisions to avoid or offset those impacts. Such implementing plan objectives and policies can be written without specific information as to expected impacts. Common sense raay be applied in reasonably inferring that reduced density will result in reduced impacts. With regard to the ALJ’s statements about access and transportation linkage, Lost Tree states that there is no evidence that reducing density would have any impact on those concerns. That argument is based on a misreading of those findings as purporting to describe a causal relationship between densities and access/transportation linkage. Those findings merely state that the Town found that the islands have no immediately available access or transporzation linkage. That statement is supported by page I-20 of the Town plan’s data and analysis, which notes that the islands have no transportation linkage to the mainland. (LEX 45) The exception is denied. Finding of Fact 139 Lost Tree agrees with the ALJ’s finding that the Town plan’s data and analysis is incorrect with respect to ‘the consideration of ‘historical’ wetland elevations,” but disagrees with the ALJ’s further finding that this “statement, when construed as a whole, supports the Town’s decision to reduce the density of development allowed on the Inner and Outer Islands.” In this exception, Lost Tree incorrectly assumes that the reference to construing as a whole refers only to that statement. The ALJ cites to two pages in the data and analysis as providing discussion of those islands. The ALJ does not state what is incorrect with the statement, but it is clear from the first 27 DCA FINAL ORDER NO. DCA99-G91-057A sentence in the finding that he is relying on two pages of the data and analysis as to his conclusion as a whole. Lost Tree’s exception only refers to two sentences on page I-20 of the data and analysis. Accordingly, the rest of the data and analysis has not been impugned, and the finding is supported by competent, substantial evidence. The exception is denied. Finding of Fact 140 This exception is directed at the two last sentences in this finding which coriclude that the data and analysis “support the Town’s concern about the location of the Inner and Outer Islands in the Preserve” and the other findings of fact concerning the characteristics of those islands. In support of its argument that there is no competent, substantial evidence upon which to base those statements, Lost Tree refers to its exception to Findings of Fact 85 and 86, which describe characteristics of the islands. As explained in this order in response to that exception, those findings, except the statement in Finding of Fact 85 as to relative size, are supported by competent, substantial evidence. The exception is denied. Finding of Fact 141 This finding reiterates earlier findings relating to the Inner and Outer Islands’ characteristics and the approval of the Town’s land use designation of those islands. Lost Tree adopts its previous exceptions as the basis for this exception. The rulings on those exceptions similarly are adopted for purposes of this exception. The exception is denied. Finding of Fact 142 Lost Tree takes exception to the finding that the maps of the Town’s plan show the existence of seagrass beds, wetlands, conservation areas, and shoreline mangroves, and the further 28 DCA FINAL ORDER NO. DCA99-GM-05 7A finding that those maps are consistent with the land use designations for the Inner and Outer Islands. The plan’s maps include depictions of wetlands, conservation areas, shoreline mangroves, and indicators of marine grassbeds. Map 1-12 on page I-27 of the goals, objectives and policies notes that an on-site investigation is required to verify specific grassbeds. As to all of the features depicted on the map, not just the grassbeds, the detail is very general, and the extent and specific location of the features cannot be determined from the maps alone. Only a general identification and depiction of environmental features on the future land use series is required by Subsection 163.3177(6)(d), F.S., and Rule 9J-5.006(4)(b), F.A.C. Lost Tree also raises the issue that the maps show the mangroves as comprising merely fringes along the islands. The maps depict shoreline mangroves and the finding makes no representation as to their extent or quality. Shoreline mangroves would include fringing mangroves. As the maps depict environmentally important areas, the Town’s reduced land use designations for the islands is adequately based on those maps. The exception is Genied. Finding of Fact 146 Lost Tree takes exception to the finding that “{t]he Town gave full consideration to private property interests.” That finding is supported by competent, substantial evidence. The need to both protect the environment and allow private development was recognized by the Town in its data and analysis (LEX 45, page I-21), and discussed in depth at Town Council meetings on April 27, 1990, May 4, 1990, and May 16, 1990 (LEX 45, 97 and 97). The exception is denied. Finding of Fact 147 This exception is based on Lost Tree’s contention that the treatment in the Town’s plan of 29 DCA FINAL ORDER NO. DCA99-GM-057A the Inner and Outer Islands is inconsistent with its treatment of similar property within the Town. In this finding, the ALJ notes that Lost Tree did not prove such disparate treatment. The exception cites to portions of the transcript that specifically discuss Gem Island and John’s Island. As this finding further notes, Gem Island and John’s Island are not similar properties because they already have a transportation link to the barrier and also have already been approved for development. Lost Tree does not dispute the evidentiary basis as to that portion of the finding. Lost Tree also contends that the Inner and Outer Islands are not similar to other islands in terms of environmental significance. In support of that argument, Lost Tree refers to its exception to Findings of Fact 85 and 86, which this order rejects. The exception is denied. Finding of Fact 151 Lost Tree disputes this finding which concludes that it is more difficult to evacuate unbridged islands in case of a hurricane. On page I-21 of the Town’s data and analysis (LEX 45), the susceptibility of the islands to Category I hurricanes is noted. It is further concluded that “any development options should be restricted to the lowest reasonable thresholds in order to protect against loss of life and to protect the general safety, health, and welfare.” As evacuation is transportation intensive, it is reasonable for an ordinary person to conclude that the population on an unbridged island would be more difficult to evacuate given the absence of roads to the mainland. Professional planner Lester Solin testified that it is common sense that evacuation by boat is slower than evacuation of an area that is linked by a system of roads. (Transcript, page 750) The exception is denied. 30 DCA FINAL ORDER NO. DCA99-GM-057A Finding of Fact 152 This exception is directed at the portion of this finding which determines that there is data and analysis to support the reduced density for unbridged, isolated islands due to the difficulty in providing emergency services. Lost Tree concedes in its exception that “there is evidence and data that suggests providing emergency services to unbridged islands is more difficult in the absence of a bridge,” but argues that there is no evidence or data that reducing densities would “combat that difficulty.” This exception is based on a misreading of the finding. The ALJ does not suggest that reduced density would improve the provision of emergency services; he simply finds that it is more difficult to provide emergency services to islands where there is no bridge, as Lost Tree admits in this exception. The exception is denied. Finding of Fact_168 This finding adopts by reference the ALJ’s findings of fact concerning the environmental importance of the Inner and Outer Islands which apply to the Town’s jurisdiction and applies them also to the portions of the Outer Islands which lie within the City’s jurisdiction. Lost Tree adopts by reference its exceptions to those findings. The rulings on those exceptions are hereby adopted by reference. The exception is denied. Finding of Fact 170 Lost Tree excepts to the statements in this finding which assert that the land use densities for the islands located within the City’s boundaries are supported by data and analysis. Those islands which are owned by Lost Tree are designated “Environmentally Sensitive (“ES”).” ES 31 DCA FINAL ORDER NO. DCA99-GM-O57A land uses are limited under Future Land Use Policy 5.3 to a maximum density of 0.2 unit per acre. That policy also commits the City to a transfer of development rights procedure. ES lands are defined in Section 1.3.2.2 of the City’ plan as follows: ...property having one or more of the following characteristics: undeveloped islands, undeveloped waterfront; environmentally sensitive; immediately adjacent to envirorunentally sensitive land or undeveloped waterfront; flora and fauna typically associated with wetlands; or a habitat for rare, threatened or endangered species or species of special concern. Environmentally sensitive lands shall include areas meeting one or more of the following criteria: (f) Undeveloped islands within the Indian River Lagoon, The islands owned by Lost Tree which lie within the City’s boundaries qualify under this policy as “ES” because they are located within the Indian River Lagoon, are undeveloped, and contain environmental features described in preceding findings of fact. Lost Tree does not dispute that the islands fit: within the definition of “ES.” Contrary to Lost Tree’s assertions, it was not necessary for the City to prepare data and analysis which show the impacts of various densities on those environmenttal features. As the data and analysis depict those features and it. is reasonable to infer that reducing development would reduce adverse impacts on those features, the density is supported by competent, substantial evidence. The exception is denied. Finding of Fact 175 This exception is similar to the one taken to Finding of Fact 170 and adopts those arguments. Lost Tree argues that there is no data and analysis to support Policy 5.3 and related Policies 5.7 and §.2, which set forth criteria for land development regulations to irnplement Policy 32 DCA FINAL ORDER NO. DCA.99-GM-05 7A 5.3. For the reasons discussed in the ruling to Finding of Fact 170, there is competent, substantial evidence to support the approaches in these three policies. The exception is denied. Finding of Fact 176 Lost Tree takes exception to the first sentence in this finding which states: “Lost Tree failed to prove the ‘ES’ land use designation and development criteria are inconsistent with Section 187.201(15)(a), Florida Statutes.” This is an ultimate finding of fact which is based on preceding Findings of Fact 155-175. The exception is limited to the findings concerning the density of one unit per five acres. The above rulings on exceptions to Findings of Fact 168, 170, and 175 which underlie this finding are adopted by reference. The exception is denied. Finding of Fact 178 Lost Tree alleges that this finding erroneously finds that Lost Tree failed to prove that the land use densities and development criteria for its islands are inconsistent with those provided in the City’s plan for other similar islands. The statements made in this finding are ultimate findings of fact that are based on preceding findings. Finding of Fact 86 finds that the small, undeveloped, and unbridged islands are similar to those in the Inner and Outer Islands. Finding of Fact 87 finds that development rights on Prang Island were vested; thus it was within the City’s discretion to assign that island a higher density to reflect the pre-approved development level. The tulings to the exceptions filed by Lost Tree to Findings of Fact 86 and 87 are adopted by reference. The \ exception is denied. 33 DCA FINAL ORDER NO. DCA99-G-057A Findings of Fact 182 and 183 These two findings of fact uphold Policy 5.6 of the City’s Future Land Use Element, which is referred to as the “no-bridgehead policy.” That policy prevents the use of any property as a bridgehead to connect any undeveloped island within the City with the Barrier Island or the mainland. In support of Policy 5.6, the ALJ states in Finding of Fact 182 that it is based on the same data and analysis that support the Town’s limiting the building of bridges to undeveloped islands. He also states that his findings of fact with respect to data and analysis upholding the Town’s bridge building limitation (Policy 1-1.1.6) also apply to this City policy. Finding of Fact 183 reiterates that finding. Lost Tree argues that the ALJ made no such findings, and there is no data and analysis to support Policy 5.6. The ALJ made findings in Findings of Fact 150-152 that Town Policy 1-1.1.6, which limits bridge building, is supported by competent, substantial evidence. Throughout the Recommended Order, the ALJ makes findings that there are sufficient data and analysis that the undeveloped islands have features of environmental importance, and that data and analysis support the ES densities. Those findings have not been overturned. The exceptions are denied. Conclusions of Law 209, 210, 216, 229, 230, and 231 These conclusions of law reiterate findings of fact in which the ALJ determines that Lost Tree did not meet its burden of proof on the various issues it raised in this proceeding. In this exception, Lost Tree reargues exceptions it made to those findings of fact and reaffirms its position that those findings are not based on competent, substantial evidence. As those 34 DCA FINAL ORDER NO. DCA99-GM-057A exceptions to findings of fact were not granted, the findings which underlie these conclusions of law remain standing. The exception is denied. Conclusion of Law 217 Conclusion of Law 217 states that “[t]he evidence failed to prove beyond fair debate that the bridgehead policy of the City was not supported by adequate and appropriate data and analysis.” As in the above exception, Lost Tree attempts to overturn this conclusion of law by rearguing its exceptions to the relevant findings of fact. As those findings of fact which pertain to the City Policy 5.6, particularly Findings of Fact 180-184, were not rejected in this order, this conclusion of law is upheld. The exception is denied. Conclusion of Law 226 In this conclusion of law, the ALJ finds that Lost Tree failed to prove that either the City or the Town failed to take into consideration the property rights goal of Subsection 187.201 (15)(a), F. S., of the State Comprehensive Plan except to the extent the Town adopted Policy 1- 1.1.6. In support of this exception, Lost Tree argues that this conclusion is not based on competent, substantial evidence and refers to its exceptions to Findings of Fact 146 and 176. Neither of those exceptions was granted above because those findings were determined to be based on competent, substantial evidence. The exception is denied. ORDER Upon review and consideration of the entire record of the proceeding, including the Recommended Order, the Exceptions to the Recommended Order, the Responses to the Exceptions, the Supplemental Recommended Order, the Exceptions to the Supplemental 35 DCA FINAL ORDER NO. DCA99-GM-057A Recommended Order, and the Responses to the Exceptions to the Supplemental Recommended Order, it is hereby ordered that: 1. DONE AND ORDERED on this2? day day g As modified by this Final Order, the findings of fact and conclusions of law in the Recommended Order and the Supplemental Recommended Order, other than those rejected herein, are adopted; The ALJ’s recommendation for the issuance of a final order finding the City’s plan in compliance is accepted; and The comprehensive plan of the City of Vero Beach is determined to be in compliance; and The ALJ’s recommendation for the issuance of a final order finding the Town’s plan not in compliance is rejected; and The comprehensive plan of the Town of Indian River Shores is determined to be in conipliance. Tallahassee, Florida 32390. 2100 NOTICE OF RIGHTS To initiate an appeal of this order, a Notice of Appeal must be filed with the Department’s Agency Clerk, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399- 2100, within thirty (30) days of the day this order is filed with the Agency Clerk. The 36 DCA FINAL ORDER NO. DCA99-GM-057A Notice of Appeal must be substantially in the form prescribed by Florida Rule of Appellate Procedure 9.900(a). A copy of the Notice of Appeal must be filed with the appropriate District Court of Appeal and must be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by yb ‘\ | the method indicated to the following persons listed below on this 20 day of ay 2001. ; Qu See _ Paula Ford, Agency Clerk EPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 (850) 488-0410 Via U.S. Mail: William L. Hyde, Esquire Gunster, Yoakley, Valdes-Fauli FIUC 20D ACHGWLEBUL tot & Stewart, P.A. FILED, c2 th:s data, with .na designated Agency Ciark, receipt of which is hereby 215 South Monroe Street, Suite 830 knowiedged. Tallahassee, Florida 32301 re ‘ , 20-5 5/80 i 0} Miriam Snipes Dita Chester Clem, Esquire Doputy agency Clerk 3333 20" Street Vero Beach, Florida 32960 Emest A. Cox, Esquire Gunster, Yoakley, Valdes-Fauli 37 & Stewart, P.A. 777 South Flagler Drive Phillips Point, Suite 500E West Palm Beach, Florida 33401 Julie B. Schutta, Esquire City of Vero Beach Post Office Box 1389 Vero Beach, Florida 32961-1389 Ken Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. P.O. Box 1110 Tallahassee, Florida 32302-1110 Via Hand-Delivery: Andrew Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399-2100 DCA FINAL ORDER NO. DCA99-GM-057A 38

Docket for Case No: 92-006784GM

Orders for Case No: 92-006784GM