STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HEARTLAND ENVIRONMENTAL COUNCIL, )
)
Petitioner, )
)
vs. )
) DEPARTMENT OF COMMUNITY AFFAIRS, ) and HIGHLANDS COUNTY, )
)
Respondents, ) CASE NO. 94-2095GM and )
) HIGHLANDS COUNTY CITRUS GROWERS ) ASSOCIATION, INC., and JOSEPH T. ) CLARKE, et al., )
)
Intervenors. )
)
RECOMMENDED ORDER
On June 10-12, 1996, a formal administrative hearing was held in this case in Sebring, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Richard Grosso, Esquire
Ryan Rothenberg, Certified Legal Intern Nova Southeastern University
Shepard Broad Law Center Civil Law Clinic
3305 College Avenue
Fort Lauderdale, Florida 33314
For County: J. Ross Macbeth
County Attorney 2543 U.S. 27 South
Sebring, Florida 33872
For DCA: Ross Stafford Burnaman, Esquire
Assistant General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-0410
STATEMENT OF THE ISSUE
The issue in this case is whether it should be determined that the Highlands County Comprehensive Plan, as amended, was in compliance with Chapter 163, Fla. Stat. (1993), as of the adoption of the County Ordinance 94-1 on March 2, 1994.
PRELIMINARY STATEMENT
This case was initiated by the filing of the Petition for Administrative Hearing by Heartland Environmental Council, Inc. (the HEC Petition) on or about April 6, 1994. But the Petition relates back to earlier proceedings, complicating significantly the procedural history of this case.
The first version of the Highlands County comprehensive plan was adopted by County Ordinance 91-1, and the Department of Community Affairs (the DCA or Department) filed a petition under Section 163.3184(10), Fla. Stat. (1991), alleging that the plan was not in compliance and resulting in DOAH Case Number 91-1934GM; HEC intervened in that proceeding in support of the DCA's position.
While Case Number 91-1934GM was pending, the County adopted Ordinance Number 93-
16 for the purpose of remediating the first version of the plan, but the DCA filed a petition under Section 163.3184(10), Fla. Stat. (1991), alleging that the remedial amendments also were not in compliance, resulting in DOAH Case Number 93-6799GM; HEC also intervened in that proceeding in support of the DCA's position. Case Nos. 91-1934GM and 93-6799GM were consolidated.
On or about March 2, 1994, the County adopted Ordinance 94-1. Ordinance 94-1 contained remedial amendments directed to the earlier versions of the County comprehensive plan (as well as other amendments.) The DCA issued a
cumulative notice of intent under Section 163.3184(16)(e), Fla. Stat. (1993), to find the Ordinance 94-1 remedial amendments in compliance, and on April 6, 1994, HEC filed the Petition that commenced this case under Section 163.3184(9), Fla. Stat. (1993). The HEC Petition was addressed not only to the Ordinance 94-1 remedial amendments but also to the initial version of the plan (Ordinance 91-1) and to the earlier set of remedial amendments contained in Ordinance 93-16.
Based on the cumulative notice of intent, the DCA moved to dismiss DOAH Case Nos. 91-1934GM and 93-6799GM under Section 163.3184(16)(f), Fla. Stat. (1993), and a Recommended Order of Dismissal was entered in those cases on April 8, 1994. But after receipt of late-filed HEC opposition that apparently had been delayed in the mail, the Administration Commission remanded Case Nos. 91- 1934GM and 93-6799GM for further proceedings. On September 14, 1994, a Recommended Order of Dismissal (on Remand) was entered. Subsequently, on or about December 8, 1994, a Final Order of Dismissal was entered in Case Nos. 91- 1934GM and 93-6799GM. However, HEC preserved issues it had raised in those earlier proceedings by including them in its Petition in this case.
After the filing of the HEC Petition, the County readopted the remedial amendments as County Ordinance 94-2 to cure what was perceived to be a possible defect in their earlier adoption as Ordinance 94-1. Neither the DCA nor HEC nor any other party has alleged that the adoption of Ordinance 94-1 was defective, and no action was taken by the DCA, HEC or any other party as to Ordinance 94-2.
This case initially was scheduled for final hearing beginning on August 29, 1994. However, the parties did not confer, as ordered, or file the required prehearing stipulation; instead, they filed unilateral prehearing statements.
In addition, at a telephone prehearing conference on August 8, 1994, at least
some of the parties professed confusion as to the issues (resulting at least in part from the remand status of Case Number 91-1934GM and 93-6799GM), and final hearing was continued until October 24-28, 1994. The parties were again required to confer and file a prehearing stipulation, as previously ordered.
On September 20, 1994, the Highlands County Citrus Growers Association filed a Petition for Leave to Intervene, and the petition was granted on September 23, 1994.
The parties filed their Prehearing Stipulation on October 17, 1994. It narrowed the issues to: whether the existing data and analysis supported the Goals, Objectives and Policies in the County's comprehensive plan, as amended, "as pertains to the Natural Resources, Future Land Use and Infrastructure categories"; and whether the County's comprehensive plan, as amended, met the minimum criteria for comprehensive plans "as pertains to the Natural Resources, Future Land Use and Infrastructure categories." Specifically, HEC limited the alleged deficiencies in the plan, as amended, to those set out in the following subparagraphs of Paragraph 9 of the HEC Petition: (A), Future Land Use Element, (1)-(3) and (5)-(9); (B), Natural Resources Element, (1)-(3), (5)-(10), and
(12)-(16). HEC also alleged that, due to those alleged deficiencies, the amended plan as a whole did not "meet minimum criteria and State requirements for protection of identified biological communities, cultural resources and groundwater from contamination."
The parties requested and were granted a telephone prehearing conference on October 19, 1994, during which they requested a continuance of the final hearing to give them time to reach and finalize a settlement agreement. On October 20, 1994, an Order Continuing Final Hearing and Requiring Status Reports was entered.
On December 6, 1994, Joseph T. Clarke, et al., filed a Petition for Leave to Intervene, and the petition was granted on December 8, 1994. Petitions for leave to intervene filed by Joseph Abelow and Matthew Dollinger initially were granted, but an Order Granting Motions to Strike was entered as to those petitions on February 1, 1995.
Subsequently, HEC through its former co-counsel reported to the hearing officer 1/ "that at the County Commissioners [sic] meeting on March 21, 1994 [sic] amendments to the plan as suggested by HEC were approved [with minor changes]. . . . HEC expects that a settlement of the above referenced case [will be forthcoming]." [Emphasis added.] 2/
On June 13, 1995, HEC's former co-counsel supposedly updated the prior report with the cryptic and ambiguous assertion "that the County Commission amendment approvals to the Plan were approved with minor changes." When the hearing officer requested a fuller, clearer report, notice was given that HEC's former co-counsel was withdrawing, and remaining counsel filed another Status Report on June 14, 1995, this time indicating that the parties were "continuing a negotiated settlement" but that a "final decision concerning whether the case be settled" would not be made for another 60 days.
On or about September 12, 1995, the County adopted comprehensive plan amendments CPA-95-003, as well as other plan amendments, by Ordinance 95-33. The CPA-95-003 amendments were intended by the County to be remedial amendments to settle this case (DOAH Case Number 94-2095GM). By their terms, they were to become effective only if DOAH Case Number 94-2095GM was dismissed before final hearing on the merits.
On or about December 11, 1995, the DCA issued a notice of intent to find the CPA-95-003 amendments (as well as others) to be in compliance; in same document, the DCA gave notice of intent to find the County's unrelated CPA-95- 007 amendments to be not in compliance.
On December 22, 1995, the Petition of the Department of Community Affairs was filed. It alleged that the County's CPA-95-007 amendments were not in compliance and commenced DOAH Case Number 95-6178GM.
On January 3, 1996, HEC filed an Amended Petition in this case, adding the allegations that the County's comprehensive plan, as further amended by CPA-95- 003, still in not in compliance.
On January 22, 1996, the County filed: a Motion to Compel Settlement Agreement, alleging that HEC had agreed to settle this case based on the CPA-95- 003 amendments; and a Motion to Strike the Amended Petition on the ground that, by their terms, the CPA-95-003 amendments cannot become effective if this case goes to final hearing. HEC responded in opposition and also filed a Motion to Consolidate this case with DOAH Case Number 95-6178GM; the County filed a response in opposition. In addition, the issues were further argued and discussed during a telephone hearing held in this case and in DOAH Case Number 95-6178GM on February 26, 1996.
On February 27, 1996, an Order Denying Motion to Compel Settlement, Denying Motion to Consolidate, and Granting Motion to Strike was entered. It ruled that the filings did not establish the consummation of a settlement agreement on the terms of the CPA-95-003 amendments or establish that HEC agreed to dismissal of this case as part of the alleged settlement. Due to the peculiar provision in Ordinance 95-33 making the effectiveness of CPA-95-003 contingent on the dismissal of this case before it went to hearing on the merits, it also was ruled that consolidation of this case with DOAH Case Number 95-6178GM for purposes of HEC's petition to have CPA-95-003 found to be not in compliance would serve no useful purpose, and HEC's Amended Petition in this case was stricken. Finally, it was ruled that this case should proceed to final hearing on the issues previously prepared for final hearing through the filing of the October 17, 1995, Prehearing Stipulation, subject only to updating (e.g., as to witnesses and exhibits), as necessary. Final hearing was scheduled for June 10- 14, 1996.
The County updated its witness and exhibit lists; HEC (and the DCA) did not. On the eve of final hearing, the County filed a Motion to Strike expected HEC witnesses and a Motion to Strike HEC exhibits. At final hearing, the motions were granted as to any witnesses or exhibits not on HEC's original witness and exhibit lists. The Motion to Strike witnesses was denied to the extent that it was based on HEC's failure to timely respond to County discovery that was due on June 6, 1996. Ruling was reserved on the County's Motion to Strike exhibits to the extent that it was based on hearsay objections.
At final hearing, HEC made an ore tenus motion to amend its petition to duplicate its challenges as to County Ordinance 94-2, the readoption of the remedial amendments to cure the perceived possible defect in their earlier adoption as Ordinance 94-1. Ruling was reserved at the time, but the motion is now denied.
At final hearing, HEC called: the County's Planning Director as an adverse witness; a botanist; its former president; and a natural resources and wildlife
manager. HEC also had its Exhibits 9, 48, 53, 54 and 78 admitted in evidence. (Objections to other exhibits offered were sustained.) The County called two environmental permitting consultants (one an ecologist and the other a wildlife manager) and one other fact witness. The County also had the following exhibits admitted in evidence: County Exhibits 1, 3-11, 13, 17-20, 22a, 22b, 38 and 40 (which consisted of 27 maps, some with acetate overlays); and HEC Exhibit 56.
The DCA did not present any additional evidence.
At the conclusion of the presentation of evidence on June 12, 1996, HEC ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on July 29, 1996, making proposed recommended orders due by August 8, 1996. However, HEC and the DCA moved for extensions of time, and the deadline for filing proposed recommended orders was extended to August 20, 1996.
On August 30, 1996, the County's filed a Motion to Strike numerous paragraphs of HEC's Proposed Recommended Order on various alternative grounds. Petitioner's Reply in Opposition to Respondent's Motion to Strike was filed on September 11, 1996. The Motion to Strike is not authorized by the rules of procedure, and no explicit ruling on it is necessary or appropriate.
FINDINGS OF FACT
Adoption History
Highlands County adopted its first Comprehensive Plan with a land use map in 1991. The Department of Community Affairs (the DCA or Department) took the position that the initial comprehensive plan was not in compliance. On September 15, 1993, the County adopted an amended comprehensive plan. (County Exhibit 6)
The DCA took the position that the amended comprehensive plan, in particular its natural resources element, did not adequately protect areas of important plant and animal habitat from agricultural land uses. (County Exhibit 8). Highlands County adopted remedial amendments on March 2, 1994. (County Exhibit 9)
On March 16, 1994, DCA published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. (County Exhibit 13) The Petition for Administrative Hearing by Heartland Environmental Council, Inc. (HEC) was filed on or about April 6, 1994. The HEC Petition was signed by Kris Delaney, as its president. The parties' Prehearing Stipulation filed on October 17, 1994, eliminated several of the issues initially raised in the HEC Petition.
The Lake Wales Ridge
Highlands County is special because of the presence of a feature known as the Lake Wales Ridge, which is only between five and 14 miles wide but stretches for about 100 miles in a north-south orientation through the County. Most of the Ridge is contained within Highlands County, but smaller portions extend into neighboring counties.
The Lake Wales Ridge had its beginnings when the sea covered much of what is now the Florida peninsula. A paleo beach and dune system was formed at the edge between the sea and the Ridge. When the waters receded, it left behind
a ridge of relatively high ground characterized by generally coarse sands. These sands, which began as beach sand, have been weathered for millions of years, rendering them very sterile and low in nutrients. Water passes very quickly through these sands, making the soil and environment resemble those occurring in much drier places.
Although created through the same processes, the Ridge contains many different unique and specialized habitats. Because of these habitats, the Ridge is a national "hot spot" for endemism. This means that many different species of organisms occur in this relatively small area; many of these species occur exclusively or primarily on the Ridge. At least two dozen plant species are found exclusively or primarily on the Ridge, and it is believed that many species have yet to be discovered.
In more recent times, the high and dry Ridge also has attracted a disproportionate share of the residential, commercial and agricultural development in the County. Development pressures have conflicted with the habitat needs for the survival of many of the plant and animal species that occurred on the Ridge. Urban and citrus development tend to obliterate habitat; they also compete for available water supply. In addition, as the Ridge has developed, the natural fires that served an important role in maintaining the special habitats of the Ridge were suppressed. More recently, although man has come to understand the importance of fire to these habitats and the species that thrive in them, the increasing presence of man's development has made fire management more problematic and, in some cases, impossible. With more and more development, the habitats of the Ridge with their many endemic plant and animal species have come under increasing pressure.
The most widespread kind of natural habitat on the Ridge is called scrub. Scrub consists mainly of scrub oak and shrubs adapted to dry, low nutrient conditions. Scrub contains a disproportionate share of the threatened and endangered plant and animal species on the Ridge. These include the Florida scrub jay, the gopher tortoise, the sand skink, the scrub lizard and the Florida mouse.
Natural scrub habitat is rapidly disappearing from the Ridge. By 1981, about 64 percent of the scrub on the southern Ridge had been severely altered. Along the central Ridge, losses were even greater--about 74 percent. By 1991, losses were estimated to be approximately 70 to 90 percent.
Sandhill is the rarest natural community in the County. It is the historic high pineland community dominated by long leaf pines. (A vegetative community known as southern sandhill is not dominated by long leaf pines and is not true sandhill; it actually is a type of scrub.) Only about one percent of the original true sandhill still existed as of March, 1994. Although altered by fragmentation and fire suppression, the remaining sandhill still supports several important endemic plant and animal species, such as the gopher tortoise, Sherman's fox squirrel, and a plant called the clasping warea.
A type of natural habitat unique to Highlands County portion of the Ridge is cutthroat seep. Cutthroat seeps occur where groundwater near and at surface elevation flows rapidly through areas usually adjacent to true wetlands, keeping the area wet but not ponded. These areas are dominated by cutthoat grasses, which require periodic burning to maintain their dominance. Drainage related to development lowers the water table and otherwise interrupts the
needed lateral flow of water, allowing the invasion of woody species. In addition, development makes fire management more problematic and, in some cases, impossible.
The most effective protection of cutthroat seep requires preservation of relatively large parcels, approximately ten acres or more. Smaller parcels are harder to fire manage. In addition, smaller parcels could be subjected to inadvertent hydrologic interruption from nearby development.
There are about 18 plant species that occur only on the Ridge. Forty plant species occur only in Florida scrub and occur on the Ridge. Twenty-two plants on the Ridge are federally listed as either endangered or threatened.
The Florida scrub jay is a federally listed endangered species that occurs only in peninsular Florida. The scrub jay also serves as an indicator species--management for scrub jay habitat will meet the habitat requirements of most other species that occur in scrub habitat.
Scrub jays require the presence of scrub oak, as well as bare ground and low growing scrub. Periodic fire is necessary to maintain this mix.
Scrub jays are very territorial. The tend to stay on one specific site.
Scrub jays are monogamous, pairing to breed for life. Juveniles help feed and protect younger birds before dispersing to find a territory of their own. Dispersal distance typically is less than a mile. Each family group occupies a relatively large area--approximately 25 acres.
Large sites are necessary to maintain a viable scrub jay population. Population viability models indicate that 150-200 individuals are needed for a population to persist for 200 years. Using this standard, fewer than ten potentially secure populations of scrub jay exist. It is believed that as much as 750 acres of scrub oak may be required to give a such a population a 90 percent chance of survival for 100 years.
Development destroys scrub jay habitat. In addition, nearby development not only makes fire management difficult, if not impossible, it increases scrub jay mortality from feral cats and dogs and from motor vehicles.
In the Base Documents supporting the Highlands County Plan, as amended, the County recognized the unique and sensitive natural resource represented by the Lake Wales Ridge. The Base Documents acknowledged that, before the comprehensive plan was adopted, the County did not have a "formal mechanism to examine the effects of proposed development and agricultural uses on natural vegetation and wildlife." The Base Documents also acknowledged that the Ridge required "more stringent controls and greater incentives for resource protection."
Conservation, Use, and Protection of Natural Resources
Natural Vegetation and Wildlife Subelement [sic]
Highlands County has adopted, as the Natural Vegetation and Wildlife Subelement [sic] of its Natural Resources Element, Objective 3 providing that the County shall protect and acquire native vegetative communities which are endemic to Central Florida and shall restrict activities known to adversely
affect the endangered and threatened species and their habitat. Under that Objective, Highlands County has adopted a number of Policies.
Highlands County's approach to conservation, use, and protection of natural resources under Objective 3 and its policies is to identify, evaluate, and protect natural resources on a site-by-site basis. (County Exhibit 6, Pages NRE-10 through NRE-25, inclusive, and County Exhibit 9) The review procedures prepared by Petitioner's representative, Kris Delaney, for the Central Florida Regional Planning Council (CFRPC) also used a site-by-site approach. (Petitioner Exhibit 56) Kris Delaney is the immediate past president of HEC and was described by Petitioner's counsel as its main representative.
Highlands County's approach to evaluation of natural resources also is comparable to the review processes adopted by federal statute and state law for the protection of threatened and endangered species. Site specific evaluation was necessary due to the variety of protected species needs, site conditions, and legal constraints.
Under Policy 3.1, A., Highlands County has adopted a number of source documents to identify endangered or threatened species, including species of special concern.
Under Policy 3.1, B., Highlands County has adopted a number of documents as guidelines for establishing mitigation, on-site protection, and remedial actions for the protection of habitats and listed species in the County's land development regulations.
Under Policy 3.2, Highlands County adopted a Conservation Overlay Map series to be used as a general indicator for the presence of xeric uplands, wetlands, cutthroat seeps, historical and archeological resources, cones of influence for potable wells, and aquifer recharge areas. (See Findings 52-59, infra, for a detailed description and explanation of these maps.) Whenever a particular site is in an area where one of those resource categories is mapped on the Conservation Overlay Map series or are otherwise known to occur, Policy
3.3 of the Natural Resources Element requires the applicant to submit to the Highlands County Planning Department a preliminary field investigation report prepared by a County-approved professional, firm, government agency, or institution. If that field investigation determines that any of those resources actually exist on the site, an Environmental Impact Report is required of the applicant. Those Environmental Impact Reports (EIR's) must also be prepared by a County approved-professional, firm, agency, or institution.
Policy 3.3, E., specifies the content of the EIR: (1) maps and a description of natural vegetative communities occurring on the proposed development site in terms of their habitat functions and significance; (2) maps and a description of the aforementioned natural resource categories which may be impacted by the proposed development; (3) an assessment of the potential impacts which would be sustained by a natural resource as a result of the proposed development; (4) an evaluation of water quality inputs and outputs;
recommendations for appropriate mitigation and on-site protection measures;
recommended land maintenance and management procedures to assure the continued viability or function of the natural resource after development; and
a list of agencies which may have permit requirements pertaining to the proposed development.
Under Policy 3.3, F., the application package and the EIR are transmitted for review and comment to the agencies listed in the Environmental
Impact Report as having permit requirements and to the Highlands County Natural Resources Advisory Committee. Responsive comments and recommendations which are received are forwarded to the County employee or board having decision-making authority concerning the applicable permit and included in the County records pertaining to the project.
Under Policy 3.3, G., after receiving the application packet, the EIR, and the comments and recommendations from other permitting agencies and the Highlands County Natural Resources Advisory Committee, the County evaluates and determines the permit conditions required to: (1) protect and preserve the water quality or natural functions of flood plains and drainage ways, potable water wells, and wetlands; (2) protect and preserve the function of native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, or species of special concern; (3) preserve and protect historical and archeological resources; (4) establish measures to protect life and property from flood hazard; and (5) establish land maintenance and management procedures for the natural resource to assure its continued viability or function after development. Policy 3.3, G., further requires that the County's final development order must be conditioned upon adequate avoidance, preservation, mitigation, or remedial actions for the protection of the aforementioned resources and must be consistent with the wetlands, flood plain, aquifer recharge, water quality, and cultural resource protection measures set forth within the policies of the Comprehensive Plan. It also requires the County to require that the necessary state and local permits be obtained as a condition of approval for the project's final development order.
In determining the appropriate conditions for the County's final development order, Policy 3.3, B., states that avoidance and preservation of the resource shall be the first choice for protecting the resource. Acquisition, conservation easements or dedications, and site design methods (including clustering development to the portion of the site where the resource does not exist or, if that is not possible, to the least environmentally sensitive portion of the site), are among the methods allowed to accomplish that purpose. Appropriate buffers between the development and the resource are also required.
Policy 3.3, C., also provides that a mitigation fee may be imposed by the Board of County Commissioners for small, isolated tracts containing less significant habitat and that the mitigation fees collected would be used to fund off-site mitigation in order that preservation of equal or greater habitat type, function, and quantity can be achieved. This is consistent with the "Review Procedure for Special Habits: Xeric Uplands" prepared by Kris Delaney for the CFRPC which provides that "[L]ocal government may wish to establish procedural relationship with such agencies and, based on locally determined criteria, a minimum parcel size requiring review." Similarly, Policy 3.4 provides an environmental mitigation fee alternative for construction of single-family residences on preexisting lots of records to the extent consistent with state and federal regulations.
These mitigation fee provisions are consistent with existing state and federal programs for protection of threatened and endangered species and species of special concern (Petitioner Exhibit 53, Pages 58 through 60; Petitioner Exhibit 56, Page 25, Level III, G.1 (cont.); and Petitioner Exhibit 78, Page 16) Policy 3.15 identifies several mitigation options which are consistent with those found in the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC.
Policy 3.5, A., requires the County to institute an ongoing program to define, identify, and conserve its native vegetative communities and the habitats of endangered or threatened species and species of special concern and states that the conservation program must include the following implementation measures: (1) acquisition of lands using public funds and grants; (2) lease of land; (3) tax abatement; (4) land swaps and transfers of title; (5) establishment of conservation or open space easements; (6) density bonuses for cluster development; (7) density bonuses for development that preserves habitat and avoids impact on endangered or threatened species, including species of special concern; (8) density transfers for conservation set-asides to buildable portions of sites; and (9) mitigation fees and mitigation fee credits.
Under Policy 3.5, B., the County has established as the top priority of its conservation program working with public and private agencies to acquire and preserve in their natural state: (1) scrub or sand hill habitats (xeric uplands); (2) endemic populations of endangered or threatened species, including species of special concern; (3) wetlands, cutthroat grass seeps, and estuaries;
(4) important aquifer recharge areas; and (5) unique scenic or natural resources.
In Policy 3.6, the County specifically references the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC as the model for its development review process for coordination with local, state, and federal regulatory agencies. Policy 3.6(g) specifically provides for coordination with local, state, and federal agencies concerning native vegetative communities or habitat areas spanning more than one local jurisdiction.
Policy 3.7 establishes funding sources for the County's conservation trust fund and requires that the fund be used exclusively for the acquisition of the priorities listed in Policy 3.5, B., or the enhancement of other publicly- owned conservation-valued lands, as determined by the Board of County Commissioners.
To discourage clearing of land prior to environmental review, the County adopted Policy 3.13, which requires property owners to obtain a County land clearing permit prior to land clearing. Issuance of the land clearing permit is conditioned upon completion of the environmental review process adopted in Policy 3.3. If property is cleared without a County land clearing permit, no development orders may be issued for that site for a period of three years after such clearing.
Under Policy 3.13, C., of the Plan, as amended, no land clearing permit is required for "any agricultural activity not requiring a Highlands County land development order conducted by a lawfully operating and bona fide agricultural operation" on property "designated by the Future Land Use Map as either General or Urban Agriculture . . .." Under the policy, such operations are "encouraged to implement a Soil and Water Conservation District approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared, and [to secure all other permits required by State and federal agencies exercising jurisdiction over the natural resources referred to in Policy 3.2 and found on said property]." [Emphasis added.] In addition, Policy 3.9 of the Natural Resources Element provides for encouraging agricultural uses which are compatible with wildlife protection and water quality outputs, implementation of erosion control and Best Management Practices.
Highlands County also has adopted many other policies in the Natural Vegetation and Wildlife Subelement [sic] of the Natural Resources Element for the protection of natural resources, including: Policy 3.8, providing for the removal and control of exotic plant species; Policy 3.10, requiring the County to incorporate the protection and conservation measures adopted under the Natural Vegetation and Wildlife Subelement [sic] into all County surface water management plans, public works projects and infrastructure improvement plans; Policy 3.11, encouraging the expansion of wildlife/greenbelt corridors; Policy 3.12, encouraging the creation of parks for the protection, preservation, and conservation of natural resources; Policy 3.14, requiring setbacks from environmentally sensitive land; Policy 3.16, providing for transfers of density and density bonuses to encourage preservation of environmentally sensitive lands and listed species through the use of planned unit developments; Policies 3.17 through 3.19, providing for the appointment, functions and responsibilities of the Highlands County Natural Resource Advisory Committee; Policy 3.20, providing for the adoption of a five-year acreage target for acquisition of natural resource lands; and Policy 3.21, providing for a buffer around Highlands Hammock State Park, publicly-owned conservation lands, and conservation lands being considered for acquisition with public funds.
Wetlands Subelement [sic]
Highlands County has adopted, as the Wetlands Subelement [sic] of its Natural Resources Element, Objective 4 providing for the protection of wetlands systems and their ecological functions to ensure their long term, economic, environmental, and recreational value and to encourage restoration of wetlands systems to a functional condition. Under Objective 4 of the Natural Resources Element, Highlands County has adopted a number of policies to protect wetlands systems.
Policy 4.1 provides for the protection of ecological functions of wetlands systems by the County through actions such as supporting the restoration of wetlands systems, protecting the natural functions and hydrology of wetlands systems by buffering against incompatible land uses and mitigating development impacts, providing for clustering and open space buffering, intergovernmental cooperation, and the acquisition of wetlands systems, including cutthroat grass seeps.
In Policy 4.2, Highlands County adopted definitions for wetlands and cutthroat seeps which are required to be mapped according to Policies 3.2 and 4.3.
In Policies 4.4 through 4.7, the County provided for the adoption of land development regulations which: encourage the restoration of wetlands systems; provide that development orders in cutthroat seeps be conditioned upon the issuance of wetlands permits by the Army Corps of Engineers, the Florida Department of Environmental Protection, and the South and Southwest Florida Water Management Districts, as their jurisdictions apply, as a condition of approval of the project's final development order or land clearing permit; prevent the net loss or alteration of wetlands on a County-wide basis; and require conservation easements and delineation on final plats for wetland and cutthroat grass seep areas used for mitigation purposes.
State and Federal Protections
State and federal permitting processes protect threatened and endangered species and species of special concern found in Highlands County.
See Conclusions 125-130 and 140-147, infra. The review processes required to obtain the state and federal permits pertaining to threatened and endangered species require site-specific review, comparable to obtaining environmental clearance from the County under Policy 3.3 of the Natural Resources Element. In view of the diversity of threatened and endangered species and species of special concern and their habitat needs, variations in quantity and quality of resources existing on site, and statutory and constitutional property rights protection, the County has chosen not to establish fixed set asides for every resource under every circumstance on a County-wide basis.
By including in its permitting process notification to federal and state agencies having permitting responsibilities, Highlands County will be providing valuable assistance to state and federal environmental protection by bringing those agencies in at an early stage of the review process. Moreover, the County's requirements that the necessary federal, state, and local permits be obtained as a condition of approval for a project's final development order will assist those federal and state agencies in enforcing environmental permits in Highlands County.
Measuring Success of Protection Measures
Extensive work by federal and state agencies has been devoted to identifying and studying threatened and endangered species, both plant and animal. Threatened and endangered species and the habitats necessary for their survival exist throughout the State of Florida. Listed species found in Highlands County are also found in other areas of the State of Florida.
The amount and land-cover types of conservation areas have been extensively studied for the entire State of Florida. The percentage of conservation lands in Highlands County (9.4 percent) exceeds the statewide median for the portion of conservation lands within individual counties (8.6 percent). The land cover types for the entire State of Florida have been identified and quantified by location and number of acres and the amounts of those habitats in conservation lands have also been determined. Likewise, for every county, the land cover types have been located, identified, mapped, and acreage determined for "natural" upland cover types, "natural" wetland cover types, and "disturbed" cover types. The "natural" upland cover type category includes coastal strand, dry prairie, pine lands, sand pine scrub, sand hill, xeric oak scrub, mixed hardwood-pine forest, hardwood hammocks and forest, and tropical hard wood hammocks. "Natural" wetland cover types include coastal salt marshes, fresh water marsh and wet prairie, cypress swamp, mixed hardwood swamp, bay swamp, shrub swamp, mangrove swamp, and bottomland hardwood forest. "Disturbed" cover types include grass land and agriculture, shrub and bush land, exotic plant communities and barren and urban land. Open water areas were also identified, located, mapped, and the acreage areas determined. The amounts of land in each of those land cover categories has been tabulated by county and for the State as a whole. The amount of land in each of those categories located in conservation lands has also been tabulated for each county and for the State as a whole.
The tabulation for land cover types for Highlands County and the amount of conservation lands for each cover type are as follows:
"Natural" upland cover types - coastal strand (0/0), dry prairie (427/112), pine lands (167/41), sand pine scrub (14/3), sand hill (0/0), xeric scrub oak (112/12),
mixed hardwood-pine forest (4/0), hardwood hammocks and forests (46/5), tropical hardwood hammocks (0/0);
"Natural" wetland cover types - coastal salt marshes (0/0), freshwater marsh and wet prairie (129/34), cypress swamp (21/8), mixed hardwood swamp (41/5), bay swamp (17/0), shrub swamp (21/5), mangrove swamp (0/0), bottomland hardwood forest (0/0);
Open water (202/1); and
"Disturbed" cover types - grass land and agriculture (1086/15), shrub and brush land (271/18), exotic plant communities (0/0), barren and urban land (307/11)
Within the parenthesis above, the first number represents the total area in square kilometers and the second number represents the conservation lands in that category, also in square kilometers. There are approximately 247 acres per square kilometer. For Highlands County, these identified land cover types cover 2,866 square kilometers of which, 270.8 square kilometers are conservation lands.
In addition to mapping those important habitat areas in each county in the State of Florida, the threatened and endangered species and species of special concern found in those habitat areas have also been identified. Those habitat areas and the threatened and endangered species and species of special concern which they support have been specifically identified and mapped for Highlands County. Since the land cover types in Highlands County have been identified, located, mapped, and quantified and the threatened and endangered species and species of special concern, both plant and animal, supported by those land cover types have been identified, Highlands County has the ability to objectively measure the success of its adopted Goals, Policies, and Objectives in protecting natural resources.
Data and Analysis and Maps
Eugene Engman, AICP, a planner/economist, was the principal author of the conservation element and Base Documents of supporting data and analysis for the County's 1991 Plan.
The Base Documents indicate extensive analysis of the County's natural resources, including: surface waters; floodplains; mineral deposits; areas with erosion problems; and fisheries, wildlife habitat and vegetative communities.
The Conservation Overlay Maps
The Base Documents also contain a "methodology for conservation designation," that applies to areas identified as areas of outstanding natural resources and to areas containing special habitat (high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge). With respect to the latter, it was not Engman's intention to map all vegetative communities on and near the Ridge; oak hammock and palm hammock, for example, was not mapped. It also was not Engman's intention to map the entire County. Engman did not believe that mapping of high quality scrub habitats, seeps and wetland forest was required, but he mapped them at no charge to the County to enable the County to better protect
endangered species and other resources on and near the Ridge where most the special habitat and most development coincided.
Following the methodology, Engman and his colleagues prepared the Resource Base Maps--County Exhibit 40. They consisted of 27 USDA Soil Conservation Service (SCS) quadrangle maps, two with acetate overlays. The quad maps themselves show some resources indicated by a separate legend available from the SCS. In addition, Engman and his colleagues indicated the location of scrub habitats, seeps and wetland forest through use of an additional legend they wrote on the quad maps. Some legends applied to more than one quad map.
In addition to the SCS quad maps themselves, Engman and his colleagues used the Soil Survey field notes of Lew Carter of the SCS, 1985 infrared aerial photographs, and local knowledge of the Dr. James Layne of the Archbold Research Station, Lew Carter of the USDA Soil Conservation Service, Mike Sawyer of the Florida Division of Forestry, and County sources.
The Base Documents also contains a Generalized Soils Map which references as its source "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989."
The Base Documents also contained two maps at the scale of one inch equals three miles--one mapping outstanding natural resources, and the other mapping special habitat. These two maps were then combined into a third map at the scale of one inch equals five miles. This third map was designated the Conservation Overlay Map in the Base Documents. Each quarter section (160 acres) of the County that contained any of the identified resources depicted on the Resource Base Maps was depicted as "Conservation" on the Conservation Overlay Map.
The Conservation Overlay Map advised that: "This map is for comprehensive planning purposes only. Specific locations are identifiable on the Resource Base Maps located in the Office of the County Planning Director."
No duplicates or copies of the Resource Base Maps--County Exhibit 40-- were made before the final hearing in this case. They were available to the public during the development of the 1991 Plan, and they were forwarded to the County Planning Department when Engman's work was finished. There, they remained available for use by the County Planning Department in implementing the Plan, and remained available for public inspection, except for a period of approximately one year when they were misplaced and could not be located.
FLU-54, the Conservation Overlay Map in the Future Land Use Map series, is the same map that is contained in the Base Documents as the Conservation Overlay Map.
The Future Land Use Map Series
In addition to FLU-54, the Future Land Use Map Series in the adopted plan, as amended through 1993, contained a Future Land Use Map Set of three large maps--a one inch equals two miles base map, and two one inch equals one/half mile maps--together with several letter-size maps at one inch equals five miles (one is at one inch equals four miles), which are FLU-55 through FLU- 62.
The adopted plan, as amended through 1994, contained the same text as the plan as amended through 1993, along with an updated Future Land Use Map Set
of six large color sheets. The base map is at a scale of one inch equals two miles and is a colorized version of the base map contained in the 1993 version of the plan; the other five maps are color insets from the base map at a scale of one inch equals one quarter mile. The rest of the Future Land Use Map Series is the same as in the Plan as amended through 1993.
In addition to the FLU-54 Conservation Overlay Map, the future land use map series included: a Generalized Soils Map which identifies its source as "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989"; Highland's County Peat Deposits, whose source is "Adley Associates, Inc. September, 1988"; Wetlands 600, whose legend identifies "wetlands" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Floodplains, whose legend identifies "floodplains" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Water and Canal Map 500, whose legend identifies "generalized interim well protection zones (cones of influence) for potable water supply wells" and whose source is "Adley Associates, Inc., Highlands County Building and Zoning Department and DER," and which is dated December, 1990; Future Traffic Circulation Map State Roads, which depicts various types of roads and whose source is "Highlands County Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Dept. (9/88) and FDOT (11/90)"; and Modified Community Parks which depicts existing and proposed parks and "existing urban land use" and whose source is "Adley Associates, Inc. April, 1990".
FLU-55, the Generalized Soils Map, was prepared using the 1989 USDA SCS Soil Survey. Major field work for the USDA/SCS Soil Survey was completed in 1986. It is the same map as the Generalized Soils Map contained in the Base Documents.
FLU-57 maps wetland features which are not depicted on either the Resource Base Maps (County Exhibit 40) or the Conservation Overlay Map. The 1989 USDA SCS Soil Survey was used to identify wetlands on FLU-57.
HEC's Contentions
HEC contended that the maps in the Plan, as amended, were deficient. It became apparent during the course of the final hearing that HEC considered the FLU-54 Conservation Overlay Map in the Plan, as amended, to be the only map pertinent to the designation of conservation lands. HEC contended that FLU-54 is too small, not clear and legible enough, and inadequate for its purposes. It appeared that HEC learned of the existence of the Resource Base Maps (County Exhibit 40) during the final hearing.
HEC contended that the Resource Base Maps were deficient because they were not based on the appropriate and best available data. As a result, HEC contended, the Base Resource Maps and FLU-54 Conservation Overlay Map "missed" some significant resources.
Kris Delaney quickly reviewed the Resource Base Maps during the course of the final hearing and testified that on the Frostproof, Lake Arbuckle, Sebring, and Fort Kissimmee quad sheets some "significant areas of native vegetation were not shown on the mylar overlays." Delaney's observations regarding the five allegedly-inaccurate mylar quad map overlays were made with reference to the USDA Soil Conservation Service Soil Survey and what he believed
was a wetland symbol on the underlying quad map. But it is not clear that Delaney understood the legend to the Resource Base Maps. Furthermore, he was not offered as an expert in photogrammetry, geography, or surveying, and the specifics of his personal knowledge of the areas in dispute were not made clear.
Another HEC witness, Dr. Menges, testified to his opinion that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. He testified that, to map native vegetative communities on a species-specific basis, Steve Christman's 1988 report for the Florida Game and Fresh Water Fish Commission would provide the best available data. (He also mentioned data from the Florida Natural Areas Inventory, but it was not clear that those data were not used or how available those data were.) However, it was not clear from the evidence that the Christman report was not used as a data source. In addition, Menges conceded that "the primary source for the distribution of (native vegetative) communities" (in Highlands County) would be the "Soil Conservation Service Survey map," and it is clear that the County's consultants used this data source, together with other soil survey information and aerial photography, as was appropriate.
It should not be surprising that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. As previously, stated, the effort was limited to high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge. There was no intention to map all native vegetative communities throughout the County.
Regardless of the alleged deficiencies with the Resource Base Maps and the FLU-54 Conservation Overlay Map, HEC did not take into account all of the maps in the Future Land Use Map series in contending that the mapping was deficient. HEC did not recognize that Policy 3.2 provides for the use of the "adopted Conservation Overlap Map series contained in the Future Land Use Element" as the "general indicator" for the resources described in the policy. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500).
HEC also did not recognize that the environmental clearance procedures under Policies 3.3 and 3.13 are triggered not only if the presence of the resources described in Policy 3.2 is mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), but also if they are known to occur by reference to any of the maps in the Future Land Use Map series, or are otherwise known to occur. The references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur.
It is not beyond debate that these sources of information, taken together, are adequate for purposes of indicating the existence of the resources described in Policy 3.2 and triggering environmental clearance review under Policy 3.3.
HEC did not establish beyond debate that the County did not use appropriate or the best available data, that the County did not apply the data in a professional manner, or that the Plan, as amended, did not react to the data in an appropriate way.
Future Land Use Element
Residential Land Use Density In Agricultural Land Use Categories
HEC presented no credible testimony or evidence to substantiate its allegation that the land use densities for agriculture and urban agriculture encourage "urban sprawl" or are not supported by adequate data. No expert testimony in land use planning was offered, although HEC had identified such potential experts on its witness list.
The Base Documents stated that agricultural density was at 1 unit/acre prior to the adoption of the Plan and recommended that the density be decreased to 1 unit/10 acres. The draft of the Base Documents recommended a density of 1 unit/ 5 acres.
The Plan established the General Agriculture land use category as the predominant land use for rural areas. It has the lowest development potential of all adopted land use categories. The General Agriculture land use category has a density range of one unit per ten acres. The Urban Agriculture land use category was established as a transitional zone between urbanized and rural lands. The Urban Agriculture land use category has a density range of one unit per five acres. (County Exhibit 6, Pages FLU-6 and FLU-7
There was no evidence to prove that lesser densities are required to discourage urban sprawl, to protect natural resources, to protect agricultural lands, or for any other reason.
Population Accommodation Data and Analysis
HEC did not present any population accommodation analysis. There was no competent evidence presented in this case as to the population accommodated in the year 2000 under either the Plan as amended and adopted on March 2, 1994, or the Plan as amended and adopted on September 15, 1993.
HEC pointed to a projection in the Housing Element in the County's Plan indicating a need for 10,075 new housing units to accommodate 16,977 new residents by the year 2000. HEC also pointed to data and analysis indicating that there are approximately 108,000 residential lots in existing subdivisions of 100 lots or more in the County that potentially could be developed to accommodate new housing units. But HEC did not establish that it is realistic to project maximum development in those subdivisions at one unit per lot; nor did HEC establish the extent of vested rights to development in those subdivisions.
Protection of Water Quality and Quantity
The Base Documents contain extensive data and analysis of County geology and soils, including water supply considerations, and recharge. Aquifer recharge in Highlands County occurs primarily on the Lake Wales Ridge. Contamination of groundwater has been documented from hazardous waste associated with landfills, agricultural use of the pesticides EDB (ethylene dibromide) and Bromicil, and leaking underground storage tanks. Of these, only the agricultural pesticide use is documented to have impacted potable water supplies. EDB, the primary source of contamination noted, has not been used since 1983. While the presence of Bromacil is also noted, the number of wells is not mentioned. Moreover, the evidence does not mention a single health-
related case. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters. There is no evidence that stormwater management activities has caused groundwater contamination.
Highlands County has adopted a number of objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wells, conserve potable water resources, and reduce the risk of groundwater contamination.
Objective 6 under the Potable Water Subelement [sic] of the Infrastructure Element is to ensure public health by protecting the water quality of potable wells. Among the policies adopted to implement that objective is Policy 6.4, adopting stringent restrictions on activities within a 600 feet radius around public potable water wells. Highlands County also adopted Objective 7 and Policies 7.1 through 7.3 under the Potable Water Subelement [sic] to establish minimum design and construction requirements for all potable water wells to protect and assure delivery of potable water.
Highlands County has also adopted a number of other objectives and policies under the Natural Resources Element intended to protect groundwater quality, including: prohibiting the location of hazardous waste treatment facilities in the County; requiring cooperation with the DEP "DRASTIC" program; prohibiting discharges of untreated stormwater and waste material into underground formations; adopting stormwater quality and quantity standards; mapping wellhead protection zones; and encouraging implementation of best management practices for agricultural operations in the County.
HEC did not prove beyond fair debate that, taken together, the Goals, Objectives, and Policies of the Plan, as amended, do not ensure the protection and conservation of potable water supplies.
CONCLUSIONS OF LAW
Limitation on the Issues
HEC is bound by the allegations in its Petition for Hearing as to the alleged deficiencies in the Plan, as further limited by the Prehearing Stipulation filed in this case. The parties' Prehearing Stipulation narrowed the issues to: whether the existing data and analysis supported the Goals, Objectives and Policies in the County's comprehensive plan, as amended, "as pertains to the Natural Resources, Future Land Use and Infrastructure categories"; and whether the County's comprehensive plan, as amended, met the minimum criteria for comprehensive plans "as pertains to the Natural Resources, Future Land Use and Infrastructure categories." Specifically, HEC limited the alleged deficiencies in the plan, as amended, to those set out in the following subparagraphs of Paragraph 9 of the HEC Petition: (A), Future Land Use Element, (1)-(3) and (5)-(9); (B), Natural Resources Element, (1)-(3), (5)-(10), and
(12)-(16). HEC also alleged that, due to those alleged deficiencies, the amended plan as a whole did not "meet minimum criteria and State requirements for protection of identified biological communities, cultural resources and groundwater from contamination."
Requirement of Proof Beyond Fair Debate
Because, after its multiple reviews, the DCA has given notice of its intent to find the Plan, as amended, to be "in compliance," HEC had the burden
of going forward with the evidence and has the ultimate burden to prove that the challenged portions of the comprehensive plan are "not in compliance"; moreover, the portions of the comprehensive plan challenged in this proceeding must be determined to be "in compliance" if the County's determination of compliance is even "fairly debatable." Section 163.3184(9)(a), Fla. Stat. (1995).
"Fairly debatable" is a standard which is "a deferential one that requires affirmance of the local government's action if reasonable persons could differ as to its propriety." B & H Travel v. Dept. Of Community Affairs, 602 So.2d 1362 (Fla. 1st DCA 1992). In effect, the "fairly debatable" standard defers not only to the County's determination but also to the DCA's determination that a plan is "in compliance." Due to the nature of comprehensive planning, in most cases it is a very difficult standard of proof to meet.
The Meaning of "Compliance"
"In compliance" means that the plan amendment is consistent with the requirements of Sections 163.3177, 163.3178, 163.3191, the State Comprehensive Plan, the applicable regional policy plan, and Chapter 9J-5, F.A.C. (where the rule is not in conflict with Chapter 163, Florida Statutes). Section 163.3184(1)(b), Florida Statutes.
Although HEC alleged that the Plan was inconsistent with the Comprehensive Regional Policy Plan, that document was not made a part of the record. HEC thus cannot meet its burden of proof as to any allegations of inconsistency with the Comprehensive Regional Policy Plan.
The applicable adopted State Comprehensive Plan is found in Section 187.201, Fla. Stat. (1993). Section 163.3177(10)(a), Florida Statutes (1995), defines "consistency" for the purpose of determining whether the plan is consistent with the State Plan. For these consistency determinations, the plan is consistent if it is "not in conflict with" the relevant plan and "take[s] action in the direction of realizing goals or policies" of the relevant plan. In making these determinations, the state plan "shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan. . . ." Id.
As compared to Chapter 9J-5, F.A.C., the state plan sets out general planning goals and policies. Unlike Chapter 9J-5, F.A.C., they do not establish "minimum criteria", rather, if a plan would appear to violate a provision of the state plan, a balanced consideration must be given to all other provisions of both the state and local plan to determine whether a local comprehensive plan is consistent with the state plan. In addition, many of the provisions of the state plan apply to the State of Florida and its agencies in planning on the state level, as opposed to local governments. Rarely, if ever, will a local plan violate the state plan if it does not also violate the applicable Chapter 9J-5, F.A.C., "minimum criteria."
The law and version of Chapter 9J-5, F.A.C., that was in effect on April 19, 1994, the date of adoption of the last plan amendment challenged, should be applied in this proceeding. See Rule 9J-5.002(8), F.A.C. (May 18, 1994). However, the applicable version of Chapter 9J-5 no longer appears in the F.A.C., and HEC neither put it in evidence nor took appropriate steps to have official recognition of the older version taken in this proceeding.
Technically, HEC's evidence is insufficient for that reason. However, the DCA's Proposed Recommended Order provides the correct citations. (In some cases, the
9J-5 citations in the HEC Petition also have been corrected to reflect rule provisions apparently meant to be cited, based on context, subject to the limitations of the Prehearing Stipulation.
The Future Land Use Element Petition Paragraph 9(A)(1)
Under Petition Paragraph 9(A)(1), HEC alleged that the Plan, as amended, failed to discourage the proliferation of urban sprawl because it allowed agricultural use on parcels less than 40 acres in size. The citation to
F.A.C. Rule 9J-5.006(3)(b)4 (which refers to the protection of natural resources) apparently was intended to cite to
Rule 9J-5.006(3)(b)8:
(3) Requirements for Future Land Use Goals, Objectives and Policies.
* * *
(b) The element shall contain one or more specific objectives for each goal statement which address the requirements of Section 163.3177(6)(a), Florida Statutes, and which:
* * *
8. Discourage the proliferation of urban sprawl . . ..
HEC's citation to data and analysis was not sufficient to prove beyond fair debate that Future Land Use Element (FLUE) of the Plan, as amended, did not meet these rule requirements, or that the FLUE was not supported by data and analysis.
Paragraph 9(A)(1) of the Petition also alleged that agricultural use violated F.A.C. Rule 9J-5.002(1)(b), which stated:
(1) Application of Chapter 9J-5. Due to the varying complexities, sizes, growth rates and other factors associated with local governments in Florida, the Department shall consider the following factors as it provides assistance to local governments and applies this Chapter in specific situations with regard to the detail of the data, analyses, and the content of the goals, objectives, policies, and other graphic or textual standards required:
* * *
The geography and size of the local government's jurisdiction, and the extent or existence of undeveloped land.
* * *
The existence of natural resource features such as groundwater recharge areas, waterwells, wetlands, wildlife habitat, coastal areas, areas subject to
coastal flooding, and living marine resources.
This citation governed how the Department was to provide assistance to local governments and evaluate the level of detail of the data and analysis and other contents of a comprehensive plan. There was no evidence that the Department violated the rule, and it is undisputed that the Department ultimately found the Plan, as amended, to be in compliance. Further, HEC presented no expert testimony or evidence to characterize how the County compares to other local governments vis a vis comprehensive plans, and HEC presented no testimony on how this rule factored into the Department's consideration. Finally, HEC did not prove beyond debate that the Department violated this rule in providing assistance to the County or in evaluating the level of detail of the data and analysis and the goals, objectives and policies in the Plan, as amended.
HEC also did not prove the alleged inconsistency with Section 187.201(8)(b)1, 5, 9 or 10, Fla. Stat. (1993).
Petition Paragraph 9(A)(2)
Paragraph 9(A)(2) of the HEC Petition alleged a violation of F.A.C. Rule 9J-5.006(3)(b)3, which stated:
(3) Requirements for Future Land Use Goals, Objectives and Policies.
* * *
(b) The element shall contain one or more specific objectives for each goal statement which address the requirements of Paragraph 163.3177(6)(a), Florida Statutes, and which:
* * *
3. Encourage the elimination or reduction of uses inconsistent with the community's character and future land uses; . . ..
The citation to this requirement in the HEC Petition is accompanied by references to natural resources protection.
F.A.C. Rule 9J-5.006(3)(b)3 appeared to implement the requirements of the part of Section 163.3177(6)(a), Fla. Stat. (1993), which provided:
The future land use plan shall be based upon . . . the need for redevelopment, including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community."
Thus, Rule 9J-5.006(3)(b)3 would appear to have stated a redevelopment requirement, not a natural resource protection requirement. This is further confirmed by F.A.C. Rule 9J-5.0006(2)(d), which required that the Future Land Use Element be based upon:
An analysis of the need for redevelopment including:
Renewal of blighted areas, and
Elimination or reduction of uses inconsistent with the community's character and proposed future land uses.
No issue concerning the County's redevelopment needs was raised in this proceeding.
Even if F.A.C. Rule 9J-5.006(3)(b)3 applied to natural resources protection, HEC did not prove beyond fair debate that the FLUE of the Plan, as amended, did not "[e]ncourage the elimination or reduction of uses inconsistent with the community's character and future land uses."
Petition Paragraph 9(A)(3)
Paragraph 9(A)(3) of HEC's Petition alleged that the Plan, as amended, did not restrict agribusiness development and violated F.A.C. Rule 9J- 5.013(2)(1). However, there is no such rule. Although not clear, HEC apparently intended to cite Rule 9J-5.013(2)(c)1.
Rule 9J-5.013(2)(c)1 is not a future land use element requirement; it is a conservation element requirement. Rule 9J-5.013(2)(c)1 requires that the conservation element have one or more for each objective which address implementation activities for the: "Protection of water quality by restriction of activities and land uses known to affect adversely the quality and quantity of identified water resources, including natural groundwater recharge areas, wellhead protection areas and surface waters uses as a source of public water supply . . .." Although it is not clear, in Paragraph 9(A)(3), HEC seems to be attempting to use this policy inappropriately to prohibit future agricultural land use.
Although Paragraph 9(B) of the Petition alleges other conservation element violations relating to water quality, it does not specifically allege any violation of Rule 9J-5.013(2)(c)1. As reflected in the Conclusions of Law on the specific allegations in Paragraph 9(B), infra, HEC clearly did not prove beyond fair debate that the County's Plan, as amended, violated Rule 9J- 5.013(2)(c)1.
Petition Paragraph 9(A)(5)
Paragraph 9(A)(5) of the HEC Petition refers to archeological or other cultural or historic resources, and there was no evidence or argument presented on these allegations.
Petition Paragraph 9(A)(6)
Paragraph 9(A)(6) of the HEC Petition cited the part of F.A.C. Rule 9J-5.005(2)(a) requiring that plan goals, objectives and policies be "based upon relevant and appropriate data" and that the data be "collected and applied in a professionally acceptable manner." HEC also cited the statement of legislative intent in Section 163.3177(10)(e), Fla. Stat. (1993), "that goals and policies be clearly based on appropriate data . . .." HEC claimed that the Plan, as amended, "does not contain accurate or complete data relating to the location of environmentally sensitive biological communities, vegetation associations and habitats." HEC further contended that the data used were compiled prior to 1989, without the use of experts, and that other data should have been used but were not.
The data used by the County clearly were relevant; HEC is arguing here that the data used to support the Future Land Use Element were "inappropriate" and not applied in a "professionally acceptable manner."
As found, HEC did not establish beyond fair debate that the data used to support the Future Land Use Element were "inappropriate" or not applied in a "professionally acceptable manner." Directly contrary to HEC's allegations, the evidence was that the data used was compiled (and analyzed) by experts. The evidence was that the County relied upon the Soil Conservation Service data, which HEC's expert termed a "primary source," together with other relevant and appropriate data. While some of the data was compiled prior to 1989, the County's consultants also used other available data not compiled until later.
HEC's primary contention seems to be that there was data available to the County (for example, the Christman report), more detailed analysis of which would have made it possible to determine and map the location of more native vegetative associations or communities and the habitat of specific species. HEC's contention seems to have been based on the mistaken belief of its witnesses that F.A.C. Rules Chapter 9J-5 required Future Land Use Maps to include these details. But the Future Land Use Data Requirements were provided in F.A.C. Rule 9J-5.006(1), and native vegetative associations or communities and species-specific habitats were not included among the natural resources required to be shown on the existing land use map or map series under subsection
(b) of the rule. ("Wetlands" were required to be mapped under sub-subsection (b)4 of the rule, and these natural resources were mapped.)
Clearly, natural resources could have been analyzed in more detail, and more detailed analysis could have resulted in improved protections. But the Future Land Use Analysis Requirements were provided in F.A.C. Rule 9J-5.006(2) and included:
(b) An analysis of the character and magnitude of existing vacant or undeveloped land, including, where available:
* * *
Gross vacant or undeveloped land area . . .;
Soils;
Topography;
Natural resources; and
Historic resources.
HEC failed to prove beyond fair debate that the Plan, as amended, failed to meet the analysis requirements of Rule 9J-5.006(2).
For these reasons, it is concluded that HEC failed to prove beyond fair debate that the Plan, as amended, failed to meet the data requirements of either F.A.C. Rule 9J-5.005(2) or Section 163.3177(10)(e), Fla. Stat. (1993).
Petition Paragraph 9(A)(7)
Paragraph 9(A)(7) of the HEC Petition refers to growth in "'antique,' i.e., old, plat subdivisions." No evidence or argument was presented under these allegations.
Petition Paragraph 9(A)(8)
Paragraph 9(A)(8) of the HEC Petition seems essentially to repeat the data and analysis allegations of paragraph 9(A)(1), which already have been addressed. It also alleges that the Plan, as amended, is "[o]verall . . . vague, convoluted, and its actual force, and effect, are not apparent nor measurable."
An "objective" is a specific, measurable, intermediate end that is achievable and marks progress toward a goal. F.A.C. Rule 9J-5.003(63). A "policy" means the way in which programs and activities are conducted to achieve an identified goal. F.A.C. Rule 9J-5.003(71). The Plan, as amended, contain objectives and policies which meet these definitions. HEC did not prove its allegations under Paragraph 9(A)(8) beyond fair debate.
Petition Paragraph 9(A)(9)
The citation to F.A.C. Rule 9J-5.006(3)(b)4 in paragraph 9(A)(9) of the Petition apparently was intended to cite to Rule 9J-5.006(3)(b)8. (See Conclusion 93, supra, for the text of the rule.) HEC alleged the County encouraged urban sprawl by "allowing over 40,000 acres for the County's future growth, which is considerably more than the projected ten-year need of 4,975 acres . . .." But HEC failed to present any expert testimony to substantiate the alleged overallocation. In addition, HEC failed to prove beyond fair debate that the Plan, as amended, lacks one or more objectives for each goal which discourage the proliferation of urban sprawl.
HEC also did not prove the alleged inconsistency with Section 187.201(17)(b)1, Fla. Stat. (1993).
The Natural Resources Element Petition Paragraph 9(B)(1)
Paragraph 9(B)(1) of the HEC Petition alleged that the Plan, as amended, violated F.A.C. Rule 9J-5.013(2)(b)2 because it did not protect identified water sources from large scale activities such as agribusiness development and commercial development.
F.A.C. Rule 9J-5.013(2)(b)2 required that the conservation element of the Plan, as amended, contain one or more specific objectives for each goal statement which: "Conserve, appropriately use and protect the quality and quantity of projected water sources . . .." HEC did not prove beyond fair debate that it does not. (See also Conclusions 163-171, infra.)
HEC also did not prove the alleged inconsistency with Section 187.201(8)(b)1, 6, 7, 9, 10 or 14, Fla. Stat. (1993).
Petition Paragraph 9(B)(2)
Paragraph 9(B)(2) of the HEC Petition alleged that the Plan, as amended, violated F.A.C. Rule 9J-5.013(2)(c)3 because it did not "establish measurable goals or target indices for protection of native vegetative communities from destruction by agriculture and other forms of development."
F.A.C. Rule 9J-5.013(2)(c)3 required that the conservation element of the Plan, as amended, contain one or more policies for each objective which address implementation activities for the: "Protection of native vegetative communities from destruction by development activities." The County's Plan, as amended, clearly includes one or more policies which address those implementation activities. HEC's real argument is that the implementation activities are inadequate.
The priorities reflected in the County's Plan, as amended, are to preserve xeric uplands (scrub or sandhill), cutthroat seeps and wetlands through public acquisition, preservation contracts with property owners and regulation of new development. The County's approach to protecting native vegetative communities from destruction by development activities and restricting activities known to adversely affect the survival of endangered and threatened wildlife is to review development plans site-by-site due to the diversity of plant and animal species, the needs of those species, and the conditions peculiar to each particular site. That review is similar to that performed by various state and federal agencies having permit jurisdiction for the protection of threatened and endangered plants and animals and is quite similar to the "Review Procedure for Special Habitats: Xeric Uplands" prepared for the CFRPC by one of the Petitioner's representatives. Although not required to do so, Highlands County has adopted Policy 3.13 of the Natural Resources Element which requires that a land clearing permit be obtained from Highlands County before clearing native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, and species of special concern (both plant and animal).
One of HEC's major complaints about the Plan, as amended, is that it does not protect all native vegetative communities. Some may well be missing from the County's mapping. But Policy 3.3 is triggered whenever xeric uplands (scrub or sandhill), cutthroat seeps or wetlands are mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), or if they are known to occur by reference to any of the maps in the Future Land Use Map series, or otherwise. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500). In addition, the references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur.
The effectiveness of those policies has been the subject of debate. Other policies might afford greater protection to native vegetative communities. But Rule 9J-5.013(2)(c)3 does not require the maximum protection possible (i.e., absolute preservation of all native vegetative communities); it requires "[p]rotection . . . from destruction by development activities." HEC did not prove beyond fair debate that, under Rule 9J-5.013(2)(c)3, the Policy 3.3 trigger is not adequate to protect native vegetative communities from destruction by development activities.
Another of HEC's major complaints about the Plan, as amended, is that Policy 3.13 exempts agriculture. But Rule 9J-5.013(2)(c)3 only speaks to protection "from destruction by development activities." In the rules in effect before May 18, 1994, neither "development activities" nor "development" was defined. But in the amendments effective May 18, 1994, F.A.C. Rule 9J-5.003(35) makes explicit that, as used in 9J-5: "Development has the meaning described in
s. Section 380.04, F.S." Under Section 380.04, Fla. Stat. (1993) and (1995), "development" is defined so as not to include agriculture.
In addition, the Legislature has placed limitations on what a county can do in a comprehensive plan to protect native vegetative communities from destruction from agricultural activities. The Florida Right to Farm Act, Section 823.14, Fla. Stat. (1993), authorizes the continued lawful application of chemical fertilizers, conditioners, insecticides, pesticides and herbicides by farm operations, stating in pertinent part:
LEGISLATIVE FINDINGS AND PURPOSE.-- The Legislature finds that agricultural production is a major contributor to the economy of the state; that agricultural lands constitute unique and irreplaceable resources of statewide importance; that continuation of agricultural activities preserves the landscape and environmental resources of the state, contributtes to the increase of tourism, and furthers the economic self-sufficiency of the people of the state; and that the encouragement, development, improvement, and preservation of agriculture will result in a general benefit to the health and welfare of the people of the state. The Legislature further finds that agricultural activities conducted on farm land in urbanizing areas are potentially subject to lawsuits based on the theory of nuisance and that these
suits encourage and even force the premature removal of the farm land from agricultural use. It is the purpose of this act to protect reasonable agricultural activities conducted on farm land from nuisance suits.
DEFINITIONS. As used in this section:
* * *
(b) "Farm operation" means all conditions or activities . . . which occur on a farm in connection with the production of farm products and includes, but is not limited to, . . . ground or aerial seeding and spraying; the application of chemical fertilizers, conditioners, insecticides, pesticides, and herbicides; and the employment and use of labor.
* * *
FARM OPERATION NOT TO BE OR BECOME A NUISANCE.--
No farm operation which has been in operation for 1 year or more since its established date of operation and which was not a nuisance at the time of its established date of operation shall be a public or private nuisance if the farm operation conforms to generally accepted agricultural and management practices, except [upon certain conditions unrelated to the use of agricultural chemicals].
Notwithstanding these statements of countervailing legislative intent, Policy 3.13 made it clear that agricultural operations are required to obtain all applicable state and federal permits. These would include the federal permits that would be necessary for destruction of habitat of endangered or threatened wildlife species. (See Conclusions 140-147, infra.) They also would include the federal and state permits that would be necessary for destruction of endangered or threatened plant species.
Part 17 of 50 Code of Federal Regulations contains the federal regulations implementing the Endangered Species Act of 1973. The lists of endangered and threatened plants are found in Subpart B of Part 17 of 50 Code of Federal Regulations. Section 17.61 of Subpart E of Part 17, of 50 C.F.R., provides, in part, as follows:
(a) Except as provided in a permit issued pursuant to 17.62 or 17.63, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the acts described in paragraphs (b) through (e) of
this section in regard to any endangered plant.
Section 17.71 of Subpart G of Part 17, of 50 C.F.R., provides, in part, as follows:
(a) Except as provided in Subpart A of this part, or in a permit issued under this subpart, all of the provisions in 17.61 shall apply to threatened plants with the following exception. Seeds of cultivated specimens of species treated as threatened shall be exempt from all the provisions of 17.61, provided that a statement that the
seeds are of "cultivated origin" accompanies the seeds or their container during the course of any activity otherwise subject to these regulations.
There are civil and criminal penalties for violations of the Endangered Species Act of 1973. 16 U.S.C. Section 1540.
Section 581.185, et. seq., Fla. Stat. (1995), provides for the recognition and protection of plant species native to the State of Florida that are endangered, threatened, or commercially exploited and protects that native flora from unlawful harvesting on both public and privately owned lands. Section 581.185(3)(a), Fla. Stat. (1995), provides:
With regard to any plant listed as an endangered plant on the Regulated Plant Index, as provided in rules of the department, it is unlawful for any person to willfully destroy or harvest any such
plant growing on the private land of another or on any public land without first obtaining the written permission of the landowner or legal representative of the landowner and a permit from the department as provided in this section. However, permits issued for species listed on the federal Endangered Species List under the federal Endangered Species Act of 1973, as amended, must be consistent with federal standards.
Chapter 5B-40, Florida Administrative Code, contains the regulations adopted to implement the requirements of Section 581.185, Fla. Stat. (1995).
Rule 5B-40.003(1), F.A.C., provides, in part, as follows:
Endangered plants.
To willfully harvest, collect, pick, remove, injure, or destroy any plant listed as endangered growing on the private land of another or on any public land or water,
a person shall obtain the written permission of the owner of the land or water or his legal representative.
Any person desiring to harvest one or more plants or parts thereof of a species contained on the endangered plant list from the private land of another or on any public land or water shall request a permit from the department.
Any person transporting for the purpose of sale, selling, or offering for sale any plant contained on the endangered plant list which is harvested from such person's own property shall request a permit from the department.
Rule 5B-40.005, F.A.C., provides as follows:
To willfully harvest, collect, pick, remove, injure or destroy any such plant listed as threatened growing on the private land of another or on any public land or water, a person shall obtain the written permission of the owner of the land or water or his legal representative.
To transport, carry, or convey on any public road or highway or sell or offer for sale in any place threatened plants which have been collected without the written permission of the property owner or his legal representative, or in the case of public land and water the superintendent or custodian of such public land or water, is in violation of this chapter.
Rule 5B-40.0055, F.A.C., provides the Regulated Plant Index required by Sections 581.185 and 581.186, Fla. Stat (1993). The Regulated Plant Index promulgated by Rule 5B-40.0055, F.A.C., is comprised of the "Endangered Plant List, the Threatened Plant List, and the Commercially Exploited Plant List."
The Index has a total of 339 listed endangered plants, 66 listed threatened plants, and 8 listed commercially exploited plants, including 45 plants that are also on the Federal Endangered Species List and 10 plants that are on the Federal Threatened Species List.
Section 163.3177(10)(d), Florida Statutes (1993), provided:
Chapter 9J-5, F.A.C., does not mandate the creation, limitation, or elimination of regulatory authority, nor does it authorize the adoption or require the repeal of any rules, criteria, or standards of any local, regional, or state agency.
Section 163.3184(6)(c), Florida Statutes (1993), provided, in part, as follows:
When a federal, state, or regional agency has implemented a permitting program, the state land planning agency shall not require a local government to duplicate or exceed that permitting program in its comprehensive plan or to implement such a permitting program in its land development regulations.
Under Sections 163.3177(10)(d) and 163.3184(6)(c), Florida Statutes (1993), the County's policies under F.A.C. Rule 9J-5.013(2)(c)3 were not required to duplicate or exceed these federal and state programs for the protection of threatened and endangered plants.
For these reasons, HEC did not prove beyond fair debate that the Plan, as amended, does not comply with Rule 9J-5.013(2)(c)3, or that its policies are not based on appropriate data and analysis, even with the agriculture exemption from the land clearing permit requirement.
HEC also did not prove any inconsistency with Section 187.201(10)(a) or (b)1 or 7, Fla. Stat. (1993).
Petition Paragraph 9(B)(3)
Paragraph 9(B)(3) of the Petition alleged that the Plan, as amended, violated F.A.C. Rule 9J-5.013(2)(c)5 because it is devoid of any policies which clearly, adequately, or objectively address this requirement by establishing measurable target indices. It also was alleged that "[s]pecial considerations are not given to listed endemic species which are restricted to the Lake Wales Ridge."
F.A.C. Rule 9J-5.013(2)(c)5 required that the conservation element of the Plan, as amended, contain one or more policies for each objective which address implementation activities for the: "Restriction of activities known to adversely affect the survival of endangered and threatened wildlife."
As found, the Plan, as amended, clearly contains one or more such policies. As previously stated, those policies utilize a site-specific review process to afford protection to natural resources, including specialized natural resources defined to include viable cutthroat seeps and xeric upland biotic communities which support threatened or endangered species.
One of HEC's complaints under Paragraph 9(B)(3) seems to be that the land clearing permit requirement does not apply to agriculture activities. As previously mentioned, the Legislature has placed limitations on what can be done
in a comprehensive plan to restrict agricultural activities. Nonetheless, while Policy 3.13 exempts agricultural activities from the land clearing permit requirement, it also requires encouraging "Best Management Practices," and it relies on the applicable regulatory functions of state and federal agencies in connection with agricultural clearing and has designed its policies to coordinate and cooperate with them.
The Endangered Species Act of 1973 requires that a permit be obtained from the Secretary of the Interior prior to engaging in any conduct which would constitute a "take". Section 1538(a), 16 United States Code, provides in part as follows:
Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to -
import any such species into, or export any such species from the United States;
take any such species within the United States or the territorial sea of the United States;
* * *
(G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter.
Section 1535(g)(2), 16 United States Code, provides for a transition period not here applicable.
Section 1539, 16 United States Code, provides for the Secretary of Interior to issue permits allowing acts otherwise prohibited by Section 1538, 16 United States Code. Section 1539(a), 16 United States Code, provides as follows:
(a) Permits
The Secretary may permit, under such terms and conditions as he shall prescribe-
any act otherwise prohibited by section 1538 of this title for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experi- mental populations pursuant to subsection
(j) of this section; or
any taking otherwise prohibited by section 1538(a) (1) (B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an other- wise lawful activity.
(A) No permit may be issued by the
Secretary authorizing any taking referred
to in paragraph (1) (B) unless the applicant therefor submits to the Secretary a conservation plan that specifies -
the impact which will likely result from such taking;
what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;
what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and
such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.
If the Secretary finds, after opportunity for public comment, with respect to a permit application and the related conservation plan that -
the taking will be incidental;
the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;
the applicant will ensure that adequate funding for the plan will be provided;
the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
the measures, if any, required under subparagraph (A) (iv) will be met; and he has received such other assurances as he may require that the plan will be implemented, the Secretary shall issue the permit. The permit shall contain such terms and conditions as the Secretary deems necessary or appropriate to carry out the purposes of this paragraph, including, but not limited to, such reporting requirements as the Secretary deems necessary for determining whether such terms and conditions are being complied with.
The Secretary shall revoke a permit issued under this paragraph if he finds
that the permittee is not complying with the terms and conditions of the permit.
The term "take" is defined in Section 1532(19), 16 United States Code, as follows:
(19) The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
As previously mentioned, Section 1540, 16 United States Code, provides civil and criminal penalties for violating the Endangered Species Act of 1973.
Part 17 of 50 Code of Federal Regulations contains the federal regulations implementing the Endangered Species Act of 1973. The actual lists of endangered and threatened wildlife are found in Subpart B of Part 17 of 50 Code of Federal Regulations.
Section 17.3 of Subpart A of Part 17 of 50 Code of Federal Regulations, states the following definitions:
"Endangered" means a species of wildlife listed in 17.11 or a species of plant listed in 17.12 and designated as endangered.
"Harass" in the definition of "take" in the Act means an intentional or negligent
act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.
"Harm" in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.
"Incidental taking" means any taking other- wise prohibited, if such taking is incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity. "Threatened" means a species of wildlife listed in 17.11 or plant listed in 17.12 and designated as threatened.
Implementing the Endangered Species Act of 1973, Section 17.21 of Subpart C of Part 17, of 50 C.F.R., provides, in part, as follows:
(a) Except as provided in Subpart A of this part, or under permits issued pursuant to 17.22 or 17.23, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit or cause to be committed, any of the acts described in paragraphs (b) through (f) of this section in regard to any endangered wildlife.
Implementing the Endangered Species Act of 1973, Section 17.31 of Subpart D of Part 17, of 50 C.F.R., provides, in part, as follows:
(a) Except as provided in subpart A of this part, or in an permit issued under this subpart, all of the provisions in 17.21 shall apply to threatened wildlife, except for 17.21(c)(5).
The State of Florida adopted the Florida Endangered and Threatened Species Act of 1977, Section 372.072, et. seq., Fla. Stat. (1993). Section 372.0725, Fla. Stat. (1993), provided:
It is unlawful for a person to intentionally kill or wound any fish or wildlife of a species designated by the Game and Fresh Water Fish Commission as endangered, threatened, or of special concern, or to intentionally destroy the eggs or nest of any such fish or wildlife, except as provided for in the rules of the Game and Fresh Water Fish Commission, the Department of Environmental Protection, or the Marine Fisheries Commission. Any person who violates this provision with regard to an endangered or threatened species is guilty of a felony of the third degree, punishable as provided in s. 775.082, s.775.083, or
s. 775.084.
Chapter 39-27 Florida Administrative Code provides regulations implementing the Florida Endangered and Threatened Species Act of 1977.
150. Rule 39-27.0011, F.A.C., provides:
No person shall kill, attempt to kill or wound any endangered species as designated in Rule 39-27.003.
Rule 39-27.002, F.A.C., provides in part as follows:
Endangered species - No person shall pursue, molest, harm, harass, capture, possess, or sell any endangered species or parts thereof or their nests or eggs except as authorized by specific permit, permits being issued only when the permitted activity will clearly enhance the survival potential of the species.
Threatened species - No person shall take, possess, transport, molest, harass or sell any threatened species or parts thereof or their nests or eggs except as authorized by specific permit from the Executive Director, permits being issued only for scientific or conservation purposes and only upon showing by the applicant that the permitted activity will not have a negative impact on the survival potential of the species.
Permits for endangered or threatened species - Permits to engage in activities prohibited in subsections (1) and (2) as they relate to those endangered species designated in Rule 39-27.003(1), (6), (7), (8), (9), (30), (33), (34), (35), (36) or (37), or threatened species designated in Rule 39-27.004(2) or (3) may be issued by the executive director of the Department of Natural Resources. Permits relating to any other endangered or threatened species may only be issued by the executive director of the commission.
Species of special concern - No person shall take, possess, transport, or sell any species of special concern or parts thereof or their nests or eggs except as authorized by commission regulations or by permit from the executive director or by statute or regulation of any other state agency, permits being issued upon reasonable conclusion that the permitted activity will not be detrimental to the survival potential
of the species.
Rule 39-27.003, F.A.C., lists endangered species. Rule 39-27.004, F.A.C., lists threatened species. Rule 39-27.005, F.A.C., lists species of special concern.
Under Sections 163.3177(10)(d) and 163.3184(6)(c), Florida Statutes (1993), the County's policies under F.A.C. Rule 9J-5.013(2)(c)5 were not required to duplicate or exceed these federal and state programs for the protection of threatened and endangered wildlife.
HEC also did not prove the alleged inconsistency with Section 187.201(10)(b)3, Fla. Stat. (1993).
Petition Paragraph 9(B)(5)
Paragraph 9(B)(5) of the Petition alleged that the Plan, as amended, violates F.A.C. Rule 9J-5.013(2)(c)8 because it does not specify a mechanism for coordination with surrounding counties in managing endemic communities and habitat such as xeric uplands and cutthroat seeps which occur across county lines.
F.A.C. Rule 9J-5.013(2)(c)8 required that the conservation element of the Plan, as amended, contain one or more policies for each objective which address implementation activities for:
Continuing cooperation with adjacent local governments to conserve, appropriately use, or protect unique vegetative communities located within more than one local jurisdiction; . . ..
Policy 3.6(g) specifically requires such cooperation and requires the use of the "Review Procedure for Special Habitats:
Xeric Uplands" prepared for the CFRPC by one Petitioner's representatives. While more specifics are possible, none are required. HEC did not prove a violation of this rule.
HEC also did not prove the alleged inconsistency with Section 187.201(10)(a), Fla. Stat. (1993).
Petition Paragraph 9(B)(6)
Petition Paragraph 9(B)(6) alleged a violation of F.A.C. Rule 9J- 5.013(2)(c)9. That rule required that the conservation element of the Plan, as amended, contain one or more policies for each objective which address implementation activities for:
Designation of environmentally sensitive lands for protection based on locally determined criteria which further the goals and objectives of the conservation element; . . ..
The Plan contains policies for the designation of environmentally sensitive lands for protection based on locally determined criteria which further the goals and objectives of the conservation element. HEC did not prove otherwise.
HEC also alleged a violation of F.A.C. Rule 9J-5.013(1) for failure to base policies on "adequate and current relevant data and analyses." [Emphasis in original.] Although not clear, this part of Paragraph 9(B)(6) apparently references the alleged mapping deficiencies that already have been addressed. As previously concluded, HEC did not prove any violation of F.A.C. Rule 9J-5.013(1) beyond fair debate.
Petition Paragraph 9(B)(7)-(8)
Petition Paragraph 9(B)(7) deals with the minimum size for surveys for archeological (cultural) resources, but there was no evidence presented on this allegation.
Petition Paragraph 9(B)(9)
Petition Paragraph 9(B)(9) alleged that F.A.C. Rule 9J-5.013(2)(c)9 and unspecified parts of the State Comprehensive Plan were violated because the Plan, as amended, does not specifically address protection for wetlands. There clearly is no basis for this contention, and HEC apparently only is referring to cutthroat seeps, some of which were alleged to have been destroyed since 1991. There was no proof of the alleged destruction. In addition, for reasons already noted, HEC did not prove the other allegations beyond fair debate.
Petition Paragraph 9(B)(10)
Petition Paragraph 9(B)(10) again alleges violations of F.A.C. Rule 9J-5.013(2)(c)5 and 9, and Section 187.201(10)(b)3, Fla. Stat. (1993), because the Plan, as amended, does not control clearing of land by agriculture. This paragraph is cumulative. As previously set out, while Policy 3.13 exempts
agricultural activities from the land clearing permit requirement, it requires encouraging "Best Management Practices," and it also relies on the applicable regulatory functions of state and federal agencies in connection with agricultural clearing and has designed its policies to coordinate and cooperate with them. HEC did not prove beyond fair debate that the Plan, as amended, violates F.A.C. Rule 9J-5.013(2)(c)5 or 9, or Section 187.201(10)(b)3, Fla.
Stat. (1993).
Petition Paragraph 9(B)(12)
Petition Paragraph 9(B)(12) alleged that the Plan, as amended, does not address "aquifer contamination by agribusiness chemicals" or the "problem of aquifer depletion which has dewatered lakes, creeks, rivers, and potable well water supplies, caused by agricultural consumptive use and excessive surface water management." These alleged deficiencies in the Plan, as amended, are said to violate F.A.C. Rules 9J-5.006(3)(c)6 and 9J-5.011(2)b)2 and 5, as well as Sections 187.201(8)(b)1, 9, 10 and 14, Fla. Stat. (1993).
F.A.C. Rule 9J-5.006(3)(c)6 required that the future land use element contain one or more policies which address implementation activities for the "[p]rotection of potable water wellfields, and environmentally sensitive land."
F.A.C. Rule 9J-5.011(2)(b)2 and 5 required, in pertinent part, that the Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge Element contain one or more specific objectives which:
2. Address coordinating the extension of, or increase in the capacity of, facilities to meet future needs;
5. Address protecting the functions of natural groundwater recharge areas and natural drainage features.
As found, Highlands County has adopted numerous objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wellfields, to conserve potable water resources, and to reduce the risk of groundwater contamination. HEC did not prove beyond fair debate that the Goals, Objectives, and Policies of the Plan, as amended, taken together, violate any of these rules, or the cited State Comprehensive Plan provision.
The alleged "aquifer contamination by agribusiness chemicals" relates primarily to the past use of chemicals that have been banned since 1983. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters.
It also is noted that the County's ability to regulate the use of agricultural chemicals was limited by other statutes. Section 487.051(2), Florida Statutes (1993), provided:
The department [defined in Section 487.021(20) to mean as the Department of Agriculture and Consumer Services or its authorized representative] is authorized to adopt by rule the primary standards established by the United States Environ-
mental Protection Agency with respect to pesticides. If the provisions of this part are preempted in part by federal law, those provisions not preempted shall apply. This part is intended as comprehensive and exclusive regulation of pesticides in this state. Except as provided in chapters 373, 376, 388, 403, and 482, or as otherwise provided by law, no agency, commission, department, county, municipality, or other political subdivision of the state may adopt laws, regulations, rules, or policies pertaining to pesticides, including their registration, packaging, labeling, distribution, sale, or use, except that local jurisdictions may adopt or enforce an ordinance pertaining to pesticides if that ordinance is in the area of occupational license taxes, building and zoning regulations, disposal or spillage of pesticides within a water well zone, or pesticide safety regulations relating to containment at the storage site.
In addition, as already noted, the Florida Right to Farm Act, Section 823.14(3)(b) and (4)(a), Fla. Stat. (1993), authorized the continued lawful application of chemical fertilizers, conditioners, insecticides, pesticides and herbicides by farm operations that conform to generally accepted agricultural and management practices.
There was no evidence as to why the Plan, as amended, allegedly does not address "dewatered creeks, rivers, and potable well water supplies, caused by agricultural consumptive use and excessive surface water management." In addition, it should be noted that state statutes on the regulation of the consumptive use of water by other agencies are preemptive and precluded Highlands County from directly regulating consumptive use.
Section 373.016(3), Fla. Stat. (1993), provided:
The Legislature recognizes that the water resource problems of the state vary from region to region, both in magnitude and complexity. It is therefore the intent of the Legislature to vest in the Department
of Environmental Regulation or its successor agency the power and responsibility to accomplish the conservation, protection, management, and control of the waters of the state and with sufficient flexibility and discretion to accomplish these ends through delegation of appropriate powers to the various water management districts. The department may exercise any power herein authorized to be exercised by a water management district; however, to the
greatest extent practicable, such power should be delegated to the governing board of a water management district.
171. Section 373.217(2) and (3), Fla. Stat. (1993), stated:
It is the further intent of the Legislature that Part II of the Florida Water Resources Act of 1972, as amended, as set forth in ss. 373.203-373.249, shall provide the exclusive authority for requiring permits for the consumptive use of water and for authorizing transportation thereof pursuant to s. 373.223(2).
If any provision of Part II of the Florida Water Resources Act of 1972, as amended, as set forth in ss. 373.203-373.249, is in conflict with any other provision, limitation, or restriction which is now in effect under any law or ordinance of this state or any political subdivision or municipality, or any rule or regulation promulgated thereunder, Part II shall
govern and control, and such other law or ordinance or rule or regulation promulgated thereunder shall be deemed superseded for the purpose of regulating the consumptive use of water. However, this section shall not be construed to supersede the provisions
of the Florida Electrical Power Plant Siting Act.
Petition Paragraph 9(B)(13)
Petition Paragraph 9(B)(13) alleged that the Plan, as amended, also violated Section 187.201(8)(b) because it "does not give specific protection to the natural flow functions and characteristics of floodplains." There was no evidence or argument presented in support of this contention; no violation of the statute was proved.
Petition Paragraphs 9(B)(14)-(16)
Petition Paragraphs 9(B)(14)-(16) were general, vague and apparently cumulative. No further discussion of them is necessary.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the Highlands County Plan adopted through County Ordinance 91- 1, as amended by County Ordinances 93-16 and 94-1, is "in compliance."
DONE and ENTERED this 15th day of October, 1996, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.
ENDNOTES
1/ Among the many amendments to the Administrative Procedures Act, effective October 1, 1996, enacted by Chapter 96-159, Laws of Florida (1996), was a change in the title of hearing officer to administrative law judge.
2/ See Report on Settlement Negotiations and Case Status, filed on April 17, 1995.
COPIES FURNISHED:
Ross Stafford Burnaman, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-0410
Ross Macbeth County Attorney 2543 U. S. 27 South
Sebring, Florida 33872
Richard Grosso, Esquire
Ryan Rothenberg, Certified Legal Intern Nova Southeastern University
Civil Law Clinic 3305 College Avenue
Fort Lauderdale, Florida 33314
Joseph J. Gleason, Esquire Florida Citrus Mutual
Post Office Box 89 Lakeland, Florida 33802
Joseph T. Clarke
Abacua Building Contractors, Inc. Post Office Box 2259
Lake Placid, Florida 33852
James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Bouelvard Tallahassee, Florida 32399-2100
Stephanie M. Gehres, Esquire Department of Community Affairs
2555 Shumard Oak Bouelvard, Suite 325-A Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
HEARTLAND ENVIRONMENTAL COUNCIL, INC.,
Petitioner,
vs. CASE NO. 94-2095GM
DCA Final Order No.: DEPARTMENT OF COMMUNITY AFFAIRS DCA-96-261-FOI-GM and HIGHLANDS COUNTY,
Respondents.
/
FINAL ORDER
On October 15, 1996, an Administrative Law Judge with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the State of Florida, Department of Community Affairs (hereafter "Department") . A copy of the Recommended Order is attached hereto as "Exhibit A."
BACKGROUND
Highlands County (hereafter "County") adopted its original comprehensive plan in 1991, pursuant to County Ordinance 91-1, which the Department subsequently determined was not in compliance with the requirements of Chapter 163, Part II, Florida Statutes. The County adopted amendments to its comprehensive plan on September 15, 1993, pursuant to County Ordinance 93-16, to address the Department's objections. These amendments were also determined to
be not in compliance based primarily on the failure of the plan, as amended, to adequately protect the County's natural resources. On March 2, 1994, pursuant to County Ordinance 94-1, the County adopted remedial amendments to address these objections. On March 16, 1994, the Department published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. On or about April 6, 1994, Heartland Environmental Council, Inc. (hereafter "Heartland"), filed a Petition for Administrative Hearing, to challenge the Department's Cumulative Notice of Intent.
STANDARD OF REVIEW
Heartland filed various exceptions to the Recommended Order disputing specified findings of fact and conclusions of law. The Department and the County each filed responses to Heartland's exceptions. As a preface to ruling on the various exceptions, it is appropriate to comment on the standard of review for recommended orders submitted by DOAH administrative law judges.
Under Section 120.57(1)(j), Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules over which it has substantive jurisdiction. However, the agency may not reject or modify findings of fact made by the Administrative Law Judge, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987. Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)
The agency may not reweigh evidence, resolve conflicts therein or judge the credibility of witnesses, as those are matters within the sole province of the administrative law judge. Heifetz v. Dept. of Business Regulation, 45 So.2d 127, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses competent, substantial evidence to support a finding of fact, the agency is bound by the finding.
TIMELINESS OF HEARTLAND'S EXCEPTIONS
The County and the Department argue, in their preliminary statements, that Heartlands' exceptions should be rejected as untimely. 1/ Heartland filed exceptions on November 1, 1996, fifteen days after the Recommended Order was submitted. Notwithstanding the specific 10 day time frame provided for filing exceptions in a Section 163.3184(9)(b) proceeding, the Notice of Right to Submit Exceptions directed that exceptions could be filed within 15 days following submittal of the Recommended Order. [Recommended Order, page 71]. Neither the County nor the Department has alleged that they were prejudiced by the procedurally late filing of Heartland's exceptions. In light of the obvious error in the Notice of Rights to Submit Exceptions, and given the absence of prejudice alleged by Respondents for the late filing, the exceptions are considered timely, and will be ruled on accordingly.
RULING ON EXCEPTIONS
Exceptions to Findings of Fact 22, 23, 44, 49, 70
Exception to Findings of Fact 22 and 23:
Findings of Fact 22 and 23 establish that the County utilizes a site-by- site evaluative approach to resource protection, an approach which is comparable to the review processes adopted by federal and state agencies to protect threatened and endangered species. Heartland takes exception to these findings on the basis that NRE Policy 3.4 exempts single-family residential construction from the resource protection requirements of NRE Policy 3.3 (if the property owner pays an environmental mitigation fee into the County's Conservation Trust Fund). Heartland does not take exception to this site-by-site approach to natural resource protection in the context of a Chapter 163, Part II, Florida Statutes, compliance proceeding.
Findings of Fact 22 and 23 do not resolve the question of whether the County adequately protects its natural resources. Findings 22 and 23 merely provide that the County's approach to resource protection is through a site-by- site review; an approach that mirrors the approach used to implement other federal and state resource protection laws. Under the applicable standard of review, as outlined above, the record supports these Findings. Heartland's exceptions to Findings of Fact 22 and 23 are therefore rejected.
Exception to Finding of Fact 44:
Heartland correctly states in this exception that the existence of state and federal laws to protect threatened and endangered species does not obviate or supplant the requirements in the Act for protecting natural resources.
Chapter 163, Part II, Florida Statutes, Chapter 9J-5, F.A.C., and Chapter 18, Florida Statutes, require local governments to conserve, appropriately use, and protect native vegetative communities, wildlife, wildlife habitat, as well as threatened and endangered species and species of special concern.
Notwithstanding that Florida's Growth Management Act (hereafter "the Act") does not limit the requirements for the protection of natural resources to the protection of threatened and endangered species, Heartland's exception must be rejected because Finding of Fact 44 does nothing more than recognize that federal and state laws exist to protect threatened and endangered species, and acknowledge that these laws apply in Highlands County. Finding of Fact 44 does not address whether these federal and state laws adequately protect threatened and endangered species in Highlands County. Neither does this Finding address whether the County's comprehensive plan policies meet the minimum criteria for protecting wildlife, wildlife habitat, and native vegetative communities as required under the Act. In the context of a Chapter 163, Part II, Florida Statutes, proceeding, a finding that there are federal and state permitting processes applicable in Highlands County is not dispositive of the issue of whether the minimum requirements of the Act have been met for the protection of wildlife, wildlife habitat, and native vegetative communities. Regardless of the materiality of Finding 44 to this determination, however, the record does provide competent, substantial evidence of the existence of state and federal laws intended to protect threatened and endangered species, that apply in Highlands County. For this reason, Finding of Fact 44 is rejected.
Exception to Finding of Fact 49:
The Department accepts Heartland's assertion that NRE Policy 3.1(B) is not a "policy" within the meaning of Rule 9J-5.003(95), F.A.C. Policies are required to provide the "way in which programs and activities are conducted to achieve an identified goal." Id. NRE Objective 3 and its associated policies, including NRE Policy 3.1(B), were adopted to ensure that the County's natural resources are properly managed, enhanced, and protected. NRE Policy 3.1(B) does not establish measurable standards for achieving this goal. NRE Policy 3.1(B) simply adopts reference material en bulk as the future source documents for later-enacted land development regulations. This policy does not provide meaningful guidance for land development regulations that will implement the County's plan, or for achieving the goal of protecting the County's natural resources.
The Department cannot reject Finding of Fact 49 based on Heartland's exception, however, because the exception is overly broad. The defect in NRE Policy 3.1(B) does not establish that all of the County's policies are similarly defective, as Heartland contends. Finding of Fact 49, like Findings of Fact 4 and 48, simply confirms, as a factual matter, that the County has identified, located, mapped and quantified the land cover types, habitat, threatened and endangered species, and species of special concern within its jurisdiction, and that this information is the type that will allow the County to measure its success in protecting its resources. Notwithstanding that NRE Policy 3.1(B) otherwise fails as a policy within the meaning of Chapter 163, Part II, Florida Statutes, Heartland does not provide a sufficient basis in its exception to overturn Finding of Fact 49.
Heartland's exception to Finding of Fact 49 is denied.
Exception to Finding of Fact 0:
Finding of Fact 70 establishes that the County's adopted Future Land Use Map consists of a series of maps: FLU-54 (Conservation Overlay Map); FLU-55 (Soils Map); FLU-5 (Wetlands Map); FLU-58 (Floodplain Map); and FLU-59 (Water and Canal Map). All planning and permitting decisions authorizing development which might impact the natural resources identified on the Future Land Use Map series must be consistent with all of these maps, collectively as well as individually. The plain language of the comprehensive plan, as amended, and Finding of Fact 70 clearly establish this. Heartland's exception actually echos Finding of Fact 70, as determined by the Administrative Law Judge, and is therefore rejected as unnecessary.
Conclusions of Law
Exception to Conclusion of Law 123:
Although not specifically identified by paragraph number, Heartland takes exception to Conclusion of Law 123, wherein the Administrative Law Judge concludes that Section 823.14, Fla. Stat., the Florida Right to Farm Act, prevents local governments from limiting agricultural activities that destroy native vegetation. There is no evidence in the record to support this conclusion, or in the Florida Right to Farm Act.
The express purpose of the Right to Farm Act is to protect existing farm activities in urbanizing areas from nuisance lawsuits that can force the premature removal of farm land from agricultural use. Section 823.14(2),
Florida Statutes. The express purpose of the Growth Management Act is to strengthen the power of local governments to ensure the most appropriate use of land, water, and resources, in order to promote, protect, and improve the public health, safety, and welfare, and to conserve, use, and protect the natural resources within the area. Section 163.3161, Florida Statutes.
To this end, each local government is required to establish the distribution, location and extent of uses for all land within the local government's jurisdiction, including residential, commercial, industrial, recreational, conservation, and agricultural uses. Section 163.31(6)(a), Florida Statutes. Each local government is also required to conserve, use, and protect its natural resources, including soils, wildlife, forests, habitat, etc. Section 163.31(6)(d), Florida Statutes, and Rule 9J-5.013, F.A.C.
The Florida Right to Farm Act does not, expressly or impliedly, preempt the requirements of Chapter 163, Part II, Florida Statutes, limit a local government's ability to regulate uses on land within its jurisdiction, or authorize unfettered destruction of native vegetative communities on lands designated as agricultural in a local government's comprehensive plan.
Conclusion of Law 123 is rejected not only as being irrelevant to the determination of whether the County's amendments are in compliance, but as an erroneous application of the law to the facts and issues in this case.
Rejection of Conclusions of Law 125-130 and 140-152.
The Department rejects Conclusions of Law 125-130 and 140- 152, as irrelevant to the compliance determination at issue in this case. Conclusions 125-130 and 140-152 reproduce portions of various federal and state laws and various permitting programs designed to protect listed threatened and endangered plant and animal species. As noted in Conclusion 132, the County is not required to duplicate or exceed existing permitting programs in order to bring its plan, as amended, into compliance. However, the mere fact that these permitting programs exist does not answer the question of whether the County's plan, as amended, meets the minimum requirements of Chapters 18 and 163, Part II, Florida Statutes, and Chapter 9J-5, F.A.C., for the protection of the County's natural resources. Conclusions of Law 125-130 and 140-152, are therefore rejected as irrelevant to this determination.
Rejection of Conclusions of Law 139 and 168.
For the reasons set out in its rejection of Conclusion of Law 123, the Department-rejects Conclusions of Law 139 and 168. These Conclusions are irrelevant to the ultimate issue in this case, whether the County's comprehensive plan, as amended, is in compliance with the Act.
Rejection, in part, of Conclusion of Law 162.
For the reasons set out in its rejection of Conclusion of Law 123, the Department rejects that portion of Conclusion of Law 162 that is based on the implicit and erroneous assumption that federal and state laws and permitting programs preempt or limit the role and authority of local governments with respect to protecting natural resources on lands used for agricultural purposes. The Department accepts, however, that portion of Conclusion of Law 162 that determines that Heartland failed to prove beyond fair debate that the County's plan, as amended, violates F.A.C. Rule 9J-5.013(2)(c)5 or 9, or Section 187.201(10)(b)3, Fla. Stat.
Rejection of Conclusion of Law 167.
The Department rejects Conclusion of Law 167 as irrelevant to the compliance determination.
ORDER
Upon review and consideration of the Recommended Order and the complete record in this proceeding, and having considered and ruled on Heartland's exceptions, it is accordingly ORDERED:
The Administrative Law Judge's Findings of Fact as set forth in the attached Recommended Order are adopted and incorporated herein as the Findings of Fact of this Final Order;
The Administrative Law Judge's Conclusions of Law as set forth in the attached Recommended Order are adopted and incorporated herein as the Conclusions of Law of this Final Order, with the exception of Conclusions of Law 123, 125-130, 139, 140-152, 162, 167, and 168, which are rejected.
As a result of the rejection of Conclusions of Law 123, 125-130 and 140-152, Conclusions of Law 124 and 153 are amended to read:
124. Policy 3.13 made it clear that agricultural operations are required to obtain all applicable state and federal permits. These would include the federal permits that would be necessary for destruction of habitat of endangered or threatened wildlife species. They also would include the federal and state permits that would be necessary for destruction of endangered or threatened plant species.
153. Under Sections 163.3177(10)(d) and 163.3184(6)(c), Florida Statutes (1993), the County's policies under F.A.C. Rule 9J-5.013(2)(c)5 were not required to duplicate or exceed federal and state permitting programs for protection of threatened and endangered species.
4. Conclusion of Law 162 is amended to read: Petition Paragraph 9(B)(9)
162. Heartland did not prove beyond fair debate that the Plan, as amended, violates F.A.C. Rule 9J-
5.013 (2)(c)5 or 9, or Section 187.201(10)(b)3, Fla. Stat.
5. The Highlands County Comprehensive Plan adopted through County Ordinance 91-1, as amended by County Ordinances 93-16 and 94-1, is determined to be in compliance.
NOTICE OF RIGHTS
The parties are hereby advised of their right to seek judicial review of this Final Order pursuant to Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399-2100, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk.of Agency Proceedings. A Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.
Done and Ordered this 25th day of November, 1996, in Tallahassee, Florida.
James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
ENDNOTE
1/ Section 163.3184(9)(b), Florida Statutes, allows 10 days in which to file exceptions.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to the Parties listed below on the 24th day of November, 1996.
James F. Murley
Richard Grosso, Esquire Civil Law Clinic
Shepard Broad Law Center Nova Southeastern University 3305 College Avenue
Fort Lauderdale, Florida 33314
Ross Burnaman, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
J. Ross Macbeth, Esquire County Attorney
2543 U.S. 27, South
Sebring, Florida 33872
Mr. Joseph T. Clarke, President Abacus Building Contractors, Inc. Abacus Realty, Inc.
5501 Waterway Drive
Sebring, Florida 33872-9671
Joseph Gleason, Esquire Post Office Box 89 Lakeland, Florida 33802
J. Lawrence Johnston Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
| Issue Date | Proceedings |
|---|---|
| Nov. 27, 1996 | Final Order filed. |
| Nov. 12, 1996 | Highlands County's Response to Exceptions filed. |
| Nov. 06, 1996 | Highlands County's Response to Exceptions (filed via facsimile). |
| Oct. 15, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 06/10-12/96. |
| Sep. 11, 1996 | Petitioner's Reply In Opposition to Respondent's Motion to Strike (filed via facsimile). |
| Aug. 30, 1996 | (Respondent) Motion to Strike (filed via facsimile). |
| Aug. 19, 1996 | (Petitioner) Notice of Service of Proposed Recommended Order; Proposed Recommended Order of Petitioner Heartland Environmental Counsel (filed via facsimile). |
| Aug. 15, 1996 | Department of Community Affairs' Proposed Recommended Order filed. |
| Aug. 12, 1996 | (Respondent) Motion for Extension of Time to File Proposed Recommended Orders (filed via facsimile). |
| Aug. 08, 1996 | (Respondent) Agreed Motion for Extension of Time to File Proposed Recommended Orders (filed via facsimile). |
| Aug. 08, 1996 | Highlands County's Proposed Recommended Order; Disk (HO has disk) filed. |
| Jul. 29, 1996 | (3 Volumes) Transcript ; Cover letter from R. Rothenberg filed. |
| Jun. 24, 1996 | Joint Exhibits (1 Box, Maps, tagged); Cover Letter filed. |
| Jun. 17, 1996 | Subpoena Ad Testificandum (from J. Macbeth); Affidavit of Service filed. |
| Jun. 17, 1996 | Subpoena Ad Testificandum (from J. Macbeth); Affidavit of Service filed. |
| Jun. 10, 1996 | CASE STATUS: Hearing Held. |
| Jun. 07, 1996 | (Highlands County) Motion to Strike filed. |
| Jun. 04, 1996 | (From R. Stafford) Notice of Appearance; Motion to Take Witness Out of Order filed. |
| May 13, 1996 | Notice of Service of Answers to Interrogatories to Heartland Environmental Council, Inc. filed. |
| May 13, 1996 | Respondent Highlands County's Third Amended Witness List filed. |
| May 13, 1996 | Respondent Highlands County's Third Amended Witness List filed. |
| May 10, 1996 | Respondent Highlands County's Amended Exhibits filed. |
| May 10, 1996 | Respondent Highlands County's Second Amended Witness List; Notice of Service; Notice of Service of Interrogatories to Heartland Environmental Council, Inc.; Heartlands County's First Set of Interrogatories to Heartland Environmental Council, Inc. filed. |
| May 03, 1996 | Respondent Highlands County's Amended Witness List filed. |
| Mar. 15, 1996 | Notice of Hearing sent out. (hearing set for June 10-14, 1996; 9:00am; Sebring) |
| Feb. 27, 1996 | Order Denying Motion to Compel Settlement, Denying Motion to Consolidate, and Granting Motion to Strike sent out. |
| Feb. 23, 1996 | Respondent Highlands County's Response in Opposition to Petitioner's Motion to Consolidate (with DOAH Case No/s. 94-2095GM, 95-6178GM) filed. |
| Jan. 30, 1996 | Petitioners' Response to Respondent's Motion to Strike and Petitioners' Motion to Consolidate; Response to Respondent's Motion to Compel Settlement filed. |
| Jan. 22, 1996 | (J. Ross Macbeth) Motion to Strike filed. |
| Jan. 22, 1996 | (J. Ross Macbeth) Motion to Compel Settlement filed. |
| Jan. 03, 1996 | Petitioner's Notice of Amendment to Petition; Petition for Administrative Hearing of Heartland Environmental Council, Inc. filed. |
| Dec. 15, 1995 | Order Deferring Status Reports sent out. (subsequent status reports are deferred until 1/22/96) |
| Nov. 06, 1995 | (Petitioner) Status Report w/cover letter filed. |
| Nov. 06, 1995 | (Petitioner) Status Report w/cover letter filed. |
| Sep. 25, 1995 | Order Denying Motion to Strike sent out. |
| Sep. 12, 1995 | Petitioner's Reply in Opposition to Respondent's Motion to Strike w/cover letter filed. |
| Sep. 01, 1995 | (Respondent) Motion to Strike filed. |
| Sep. 01, 1995 | (J. Ross Macbeth) Motion to Strike filed. |
| Jun. 15, 1995 | (Petitioner) Notice of Withdrawal filed. |
| Jun. 14, 1995 | (Petitioner) Status Report filed. |
| Jun. 13, 1995 | (Petitioner) Report on Settlement Negotiations and Case Status filed. |
| Apr. 17, 1995 | (William Mulloy) Report on Settlement Negotiations and Case Status filed. |
| Mar. 20, 1995 | Notice of Change of Land Use and Amendments to the Highlands County Plan filed. |
| Mar. 06, 1995 | (Petitioner) Report on Settlement Negotiations and Case Status filed. |
| Feb. 21, 1995 | (Petitioner) Notice of Appearance filed. |
| Feb. 01, 1995 | Order Granting Motions to Strike sent out. (motion granted) |
| Jan. 26, 1995 | Response of Intervenor Joseph Abelow and Matthew Dollinger, as Co-Receivers, to Respondent Highlands County's Motion to Strike filed. |
| Jan. 26, 1995 | Statement Offered by Joseph Abelow, Co-Receiver in Response to Highlands County`s Motion to Strike Petition for Leave to Intervene and Also the Voluntary and Gratuitous Statement Offered by Joseph Abelow filed. |
| Jan. 19, 1995 | (Petitioner) Report On Settlement Negotiations And Case Status filed. |
| Jan. 17, 1995 | Respondent Highlands County's Motion to Strike filed. |
| Jan. 17, 1995 | Respondent Highlands County's Motion to Strike filed. |
| Jan. 10, 1995 | Respondent Highland County's Motion to Strike filed. |
| Jan. 10, 1995 | (Joseph Abelow Co-Receiver) Petition for Leave to Intervene; Exhibit A thru C Tagged w/cover letter w/cover letter filed. |
| Jan. 10, 1995 | Respondent Highland County's Motion to Strike filed. |
| Jan. 09, 1995 | (Joseph Abelow Co-Receiver) Petition for Leave to Intervene filed. |
| Jan. 04, 1995 | Order Granting Leave to Intervene sent out. (petition for leave to intervene is granted) |
| Dec. 30, 1994 | (Petitioner) Petition for Leave to Intervene filed. |
| Dec. 30, 1994 | (Petitioner) Petition For Leave To Intervene filed. |
| Dec. 08, 1994 | Order Granting Leave to Intervene sent out. (petition for leave to intervene is granted to the extent that leave is granted to Joseph T. Clarke, Et Al., to intervene and participate as parties to this proceedings) |
| Nov. 28, 1994 | Petition for Leave to Intervene filed. |
| Oct. 20, 1994 | Order Continuing Final Hearing, and Requiring Status Reports sent out. (hearing date to be rescheduled at a later date) |
| Oct. 17, 1994 | (Petitioner) Prehearing Stipulation filed. |
| Oct. 17, 1994 | (Petitioner) Prehearing Stipulation filed. |
| Sep. 23, 1994 | Order Granting Leave to Intervene sent out. (petition for leave granted) |
| Sep. 20, 1994 | (Petitioner) Petition For Leave to Intervene filed. |
| Sep. 02, 1994 | (Highlands County) Notice of Time and Place of Meeting (re: planning issues; set for 8/31/94; 10:00am; Sebring) filed. |
| Aug. 31, 1994 | DCA's Notice of Objection (to Heartland Environmental Council's 1st set of Interrogs.) filed. |
| Aug. 09, 1994 | Order Continuing Final Hearing And Establishing Prehearing Requirements sent out. (hearing rescheduled for October 24 thru October 28, 1994; 10:00am; Sebring) |
| Aug. 08, 1994 | Respondent Highland County's Prehearing Stipulation filed. |
| Jul. 29, 1994 | Notice of Telephone Prehearing Conference Meet Me Number sent out. (set for 8/8/94; 10:00am) |
| Jul. 29, 1994 | (Petitioner) Notice of Serving Answers to Interrogatories w/Interrogatories filed. |
| Jul. 28, 1994 | Heartland Environmental Council's First Set of Interrogatories to State of Florida, Department of Community Affairs filed. |
| Jun. 24, 1994 | (Respondent) Notice of Serving of Interrogatories to Heartland Environmental Council filed. |
| May 16, 1994 | Notice of Hearing sent out. (hearing set for 8/29/94; 10:00am; Sebring) |
| May 16, 1994 | Prehearing Order sent out. |
| May 09, 1994 | CC Notice of Appearance filed. (From William Mulloy) |
| Apr. 25, 1994 | Notice of Assignment and Initial Order sent out. |
| Apr. 22, 1994 | DOAH Notification Card sent out. |
| Apr. 19, 1994 | Agency referral letter; Petition for Administrative Hearing by Heartland Environmental Council, Inc.; Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 25, 1996 | Agency Final Order | |
| Oct. 15, 1996 | Recommended Order | Petitioner unable to meet burden to prove noncompliance beyond fair debate. Federal and State regulations' do not have to be duplicated and limited what county could do in plan. |
