STATE OF FLORIDA ADMINISTRATION COMMISSION

DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioner,

and

RESPONSIBLE GROWTH MANAGEMENT COALITION,

INC., and SYLVAN ZEMEL, etc., et al., Intervenors,

vs. CASE No. ACC-96-002

LEE COUNTY, DOAH CASE No. 95-0098GM

Respondent,

and

1. RICHARDS, III and FRANK DIPLACIDO, Co-Trustees for the BONITA GRANT TRUST, ATLANTIC GULF COMMUNITIES CORPORATION, JAMES R. COLOSIMO and DAVID BRADLEY, Trustees, ALICO, INC., and STEPHAN MACHIZ, DAWSON GLADDING and PHILLIP C. BENNETT, Co-Trustees for the 750 ALICO TRUST,

   Intervenors.

   /

   
   

   FINAL ORDER

   
   

   This cause came before the Governor and Cabinet sitting as the Administration Commission ("Commission"), on July 23, i996, on the Recommended Order entered pursuant to Section l63.3;84(10)(b), Fla. Stat. (F.S.), in Division of Administrative Hearings Case No. 95-0098GM. On July l, i994, Lee County adopted an Evaluation and Appraisal Report (EAR) for its local comprehensive plan; and on November 1, 1994 Lee County adopted EAR-based amendments to its plan. On December 28, 1994, the Department of Community Affairs issued its Statement of Intent to find the EAR-based amendments not "in compliance" as defined in Section 163.3184(1)(b), F.S. Pursuant to Section 163.3184(10)(a), F.S., the Department's petition for administrative hearing was forwarded to the Division of

   Administrative Hearings, and a Hearing Officer was assigned. An eleven day formal hearing was conducted in September, 1995, in Fort Myers, and was completed in Tallahassee (with a video connection for participants in Fort Myers) on October 13, 1995. The Hearing Office-r issued a Recommended Order on January 31, 1996, finding the EAR-based amendments not "in compliance." Several parties filed Exceptions to the Recommended Order.

   
   

   Upon our review of the record, the Recommended Order and Exceptions, this Commission hereby adopts the Recommended Order except as noted below and finds the EAR-based amendments listed below not in compliance with Chapter 163, Part II, Fla. Stat., and Rule 9J-5, Florida Administrative Code.

   
   

   STANDARD OF REVIEW FOR FINDINGS OF FACT

   
   

   Several of the parties' exceptions ask the Administration Commission to change findings of fact in the Recommended Order. Section 120.57(1)(b)10., Fla. Stat. (1995), of the Administrative Procedure Act, provides in part that,

   
   

   The agency in its final order . . . may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence . . .

   
   

   In accord with the cited statutory provision is the opinion of the First District Court of Appeal in Heifetz v. Department of Business Regulation, 475 So. 2d 1277 (Fla. 1st DCA 1985).

   
   

   RULINGS ON LEE COUNTY'S and ALICO'S EXCEPTIONS

   
   

   LEE EXCEPTIONS 1, 10, 11, 18, 56 and ALICO EXCEPTIONS 23, 27, 40: THE 2010 OVERLAY.

   
   

   Lee County and Alico take exception to the Hearing Officer's findings of fact concerning the 2010 Overlay. The Hearing Officer's findings of fact concerning the 2010 Overlay are supported by competent substantial evidence.

   
   

   1. The Hearing Officer found that the 2010 Overlay was intended to match the amount of development that can be accommodated by the 2010 Future Land Use Map (FLUM) with the projected County-wide population for the year 2010. FF 7, 37, &

38. This finding of fact is supported by: The 1989 Settlement Agreement (Jt Ex 13, par II.A.), and the testimony of Matt Uhle (T73) and Dr. Nelson (T232). Also, the 1990 Amendments (Jt Ex

14) which actually adopted the 2010 Overlay indicate that the County-wide population for 2010 was projected to be 757,370 (Jt Ex 14, Vol 2, p 36), and that the population accommodated by the 2010 Overlay would be 752,729 (Jt Ex 14, Vol 2, p 54): a virtual match. As Lee County's Evaluation and Appraisal Report (EAR) (Jt Ex 2) stated,

The Overlay, in plain terms, was a device designed to reconcile the population accommodation capacity of the Future Land Use Map (estimated to be 70 years in 1989) with the 20-year time frame in the text of the element. (Jt Ex 2, Vol 1, p III-25)

The Hearing Officer properly found that the 2010 Overlay was intended to match the amount of development shown on the 2010 FLUM with the estimated 2010 population of Lee County.

2. The Hearing Officer found that,

The 2010 Overlay accomplished [the match of the amount of development with projected population] in part by assigning percentage distributions, in the form of acreage allocations, to the various uses in the many mixed use categories in the FLUM. (FF 7)

An examination of the 2010 Overlay in the 1994 Codification of the Lee Plan (Jt Ex l, Maps 16 & 17), supports finding of fact

1. The Hearing Officer described the 2010 Overlay:

   
   

   The 2010 Overlay is, in the words of the 1994 Codification of the Plan, "an integral part of the Future Land Use Map series." Map 16 is a map which divides Lee County into 115 subdistricts. "Map" 17 is not a true map; it is a series of bar tables and pie charts that correspond to acreage allocations for land uses within the subdistricts. Each subdistrict is allocated a specific number of acres for each of the following land uses: residential, commercial, industrial, parks and public, active agriculture, conservation, passive agriculture and vacant. (FF 6)

   
   

   The pie charts plainly illustrate the percentage distribution of the various land uses provided by the 2010 Overlay.

   
   

   1. The Hearing Officer found that,

      
      

      The Dwelling Unit Counts and Projections charts in the support documents for the 1990 amendments demonstrate that the 2010 Overlay was designed to greatly limit the number of dwelling units that could be constructed by 2010 compared to the number allowed by the 2010 FLUM without the Overlay. (FF 8, last

      sentence)

      
      

      The charts cited by the Hearing Officer (Jt Ex 14, Vol 2, pp 39-53) support no other determination. Contrary to the County's assertion, the 2010 Overlay shows great differences between the units allowed by the FLUM and those allowed by the 2010 Overlay in several areas aside from Lehigh Acres. Planning District 9, for example (Jt Ex 14, Vol 2, p 47), is allocated 32,791 dwelling units under the FLUM, but only 17,824 by the 2010 Overlay.

      
      

   2. The Hearing Officer found that:

32. It seems obvious that the deletion of the 2010 Overlay must increase population accommodation, at least up to the year 2010. Up to the time of the hearing, the DCA had not requested, and no party did, an allocation ratio analysis of the 2010 Overlay similar to the one the DCA prefers for the 2020 FLUM without any Overlay for the purposes of making a comparison between the two.

Although Lee County and Alico argue that the increase in population accommodation is not at all obvious, the record supports the Hearing Officer. The 1990 Amendments (Jt Ex 14, Vol

2) show a great difference between the 2010 Plan with the Overlay and without the Overlay. (Jt Ex 14, Vol 2, pp 39-53) The author of the County's EAR, Matt Uhle, conceded that ". . . the elimination of the overlay would serve to increase the capacity of the (land use) map." (T74)

Lee Exceptions 1, 10, 11, 18, 56 and Alico Exceptions 23,

27, 40 are DENIED.

LEE EXCEPTIONS 2 & 51:

THE 1989 SETTLEMENT AGREEMENT.

Lee County contends that the article, "Expanding the Overallocation of Land Use Categories," published in the June 1995 issue of DCA's "Community Planning," and Rule 9J- 5.006(5)(k), F.A.C., limits the Department to examining "the extent to which the amendment exacerbates the urban sprawl indicators beyond the extent that existed at the time the plan was approved."

Neither the article nor the rule address settlement agreements. As stated in Findings of Fact 2 through 5, Lee County adopted the 2010 Overlay pursuant to its obligations under the 1989 Plan Compliance Agreement. The Compliance Agreement

clearly stated that if the County adopted the plan amendments which included the 2010 Overlay, then the Department would find the Lee Plan in compliance. Jt Ex 13.

Even in the absence of a settlement agreement, the article and the rule do not contemplate a fundamental revision of the FLUM affecting the entire local government jurisdiction. The 2010 Overlay was "an integral part of the Future Land Use Map series." J Ex 1, Poll 1.1.1; Uhle T73-74. The 2010 Overlay applied to the entire unincorporated County. As previously noted, the author o' the EAR and the EAR-based amendments, Mr. Ohle, conceded that, "The elimination of the overlay would serve to increase the capacity of the (land use) map." Uhle T74. Such a major revision of the FLUM, and the abandonment of the Plan's primary strategy to discourage urban sprawl, demand the examination of the remaining provisions of the plan for compliance with 9J-5.

Lee Exceptions 2 & 51 are DENIED.

LEE EXCEPTIONS 9, 13 28, 29 30 31, 32 33, 34 36 47 and ALICO EXCEPTION 38: MIXED USE.

One of the central issues in this case involves DCA Rule 9J- 5.006(4)(c), F.A.C., which states:

(c) Mixed use categories of land use are encouraged. If used, policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density or intensity of each use.

The Lee Plan without the 2010 Overlay does not include policies which provide a percentage distribution among the mix of uses. T77-78. The Hearing Officer found that

Almost all of the land use categories [in the Lee Plan] are mixed land use categories that allow residential, commercial and in some cases also light industrial uses without any percentage distributions or other objective measurements of distribution among the uses. FF1

The testimony of Dr. Nelson [T235-249] and the cross-examination of Mr. Landers [T1930-1941] provided competent, substantial evidence to support the Hearing Officer's finding of fact.

Lee County and Alico argue that since the Lee Plan has provisions called "locational standards" and "compatibility requirements," those provisions must provide the objective measurement of distribution among the uses required by rule 9J- 5.006(4)(c), F.A.C. Lee County and Alico's request to the Hearing Officer, and now-to the Administration Commission, to disregard the analysis of what the "locational standards" and "compatibility requirements" actually accomplish, must be denied.

For example, Policy 6.1.2 of the 2020 Lee Plan [J Ex 8] provides the locational criteria for commercial development. However, the commercial locational criteria do not apply to non- retail commercial development, such as office, motel and hotel, or wholesale commercial development, which can be located anywhere under the Plan. [See subPolicy 6.1.2.7; FF 59] Retail commercial development is scarcely controlled by the "locational criteria," since the Plan allows Minor Commercial development of up to two acres to be located at any intersection of a local road with a collector or an arterial, or at the intersection of two collectors. [See subPolicy 6.1.2.1; FF60] There are a substantial number of intersections which meet those criteria, and they have not been counted or mapped. [Testimony of Uhle T1428-1429; Jt Ex 2, Vol 2, p III-22] Further, even retail commercial can be developed at locations which do not meet the locational criteria under the discretion granted to the Board of County Commissioners. [See subPolicies 6.1.2.8, 9 & 10; Testimony of Uhle T1429-1431; FF59]

Thus, a clear analysis of the actual effect of the "locational criteria" and "compatibility requirements" in the Lee Plan supports the Hearing Officer's finding of fact that:

69. As has bean seen, the Lee Plan without any Overlay makes extensive use of mixed land use districts without percentage distributions or other objective measurements of distribution among uses. Much of the dispute between the parties as to residential accommodation and allocations of land for commercial and industrial uses results from the lack of percentage distributions or other objective measurements of distribution among the uses in the plan's mixed land use categories. Although the County predicts development of only a percentage of these districts as residential, it remains possible for much larger percentages to be developed residential. On the other hand, it is possible for practically all of the mixed

land use districts to develop commercially or even industrially.

Lee Exceptions 9, 13, 28, 29, 30, 31, 32, 33, 34, 36, 47 and

Alico Exception 38 are DENIED.

LEE EXCEPTIONS 7, 12, 14 15, 17, 19, 38 and ALICO EXCEPTION 24: HISTORIC DENSITIES and the SHERIDAN FINAL ORDER.

Lee County contends that the Hearing Officer was improperly critical of the County's use of historic densities in analyzing the amount of development accommodated by the 2020 Lee Plan. Lee County asserts that its Figure 14 estimate of growth by 2020 is the most reasonable prediction available. The Hearing Officer concluded that the 2020 Lee Plan authorizes far more development than is predicted by Lee County's Figure 14. See Conclusions of Law 177 & 178. The 2020 FLUM allows far denser and intenser development than the "historical patterns of growth," and in far larger amounts than will be needed by 2020. As the Hearing Officer stated, and the Administration Commission adopted, in Sheridan v. Lee County and DCA, 16 FALR 654, 689 (Fla. Admin.

Comm. 1994) [J Ex 15 p 40-41],

The analysis misses the point of the process if the maximum densities authorized by a plan are reduced to reflect historic densities.

The question is whether the densities authorized by a plan are supported by data and analysis, not whether data and analysis support densities somewhere between the maximum authorized densities and historic densities. Especially where historic densities reflect an inefficient use of land, as is clearly the case in Lee County, analysis of a plan based in part on historic densities invites the repetition of past planning failures.

Lee County and Alico argue that, even though the language of the Sheridan order seems to reject the use of historic densities, the order actually approved the use of historic densities. The County states that the data and analysis that were submitted in 1930 to support the 2010 Overlay were based upon historic densities. However, the use of historic densities in the 1990 data and analysis was one basis for the Sheridan order determination that the 2010 Overlay was not in compliance. As a result, one of the remedial amendments required by the Administration Commission in Sheridan was:

To address the density calculation issue the

County shall revise the data and analysis to include maximum allowable densities in determining the amount of development allowed by the 2010 Overlay and to show that the amount o' development allowed is based upon expected growth. [Sheridan final order, 16 FALR at 661; J Ex 15, p 10]

Lee Exceptions 7, 12, 14, 15, 17, 19, 38 and Alico Exception 24 are DENIED.

LEE EXCEPTIONS 20, 22, 23, 24, 25, 26, 48 49, 50, 52, 53, 54 and ALICO EXCEPTIONS 21 & 22: ALLOCATION METHODOLOGY

Lee County argues that the Hearing Officer did not completely accept the methodology of any party. However, the Hearing Officer was not obliged to adopt every detail of the Department's theory of the case in order to agree with the Department that the proposed amendments are not in compliance. Alico asserts that the Hearing Officer rejected the Department's "maximum theoretical residential potential" analysis of a comprehensive plan as "unrealistic." However, the point of the "maximum theoretical" analysis is that the Lee Plan allows a vast amount of residential development, even though it is clearly unrealistic to expect all of that development to occur by 2020.

As Dr. Nelson stated, "The purpose of [the analysis] was not to demonstrate likelihood, it was to indicate capacities that indicate the lack of management of growth patterns." [T383]

The Hearing Officer also reviewed the various analysis methodologies advanced by the other parties at the final hearing, and concluded that,

. . . the Lee Plan without the Overlay allocates more land than is needed for residential use by the year 2020 even with a healthy margin of safety. [CL 179]

Lee County and Alico suggest that the safety factor built into the allocation factor exists solely to avoid the under- allocation of land for development. However, Lee County's own expert limited that assertion to only one part of the analysis. Landers T1905. As Mr. Landers quoted Urban Land Use Planning, 4th ea., by Kaiser, Godchalk and Chapin (hereinafter referred to as "Chapin"),

Essentially, land use planning is the art of matching different users of land to supply of land, that is, the attainment of congruence between user needs and land supply by the

proper siting and sizing of land uses. [Landers T1906.]

Lee County objects to the Hearing Officer's conclusion that

§163.3177(1), F.S., Rules 9J-5.0~5(2) (e) and 9J-5.006(2),

F.A.C.," . . . require comprehensive plans to maintain a reasonable relationship between the land allocated for development within the planning time frame and the expected population within that time frame." [CL 176] The County complains that it is improper to consider these provisions outside the urban sprawl rule.

The County also asserts that there are no findings of fact to support Conclusion of Law 190 that the Lee Plan, as amended, contains primary indicators of urban sprawl 1 through 9 listed in Rule 9J-5.996(5)(g), F.A.C. The County concedes that factors 1 and 5 were factually determined to be violated. However, Conclusion of Law 190 concerning factors 2, 3, 4, 9 and 10 is

supported by Findings of Fact 81, 82 and 84. Factor 8 is supported by Findings of Fact 85 through 93. Factor 11 is supported by Finding of Fact 78. All of the primary factors need not be present in order to support a determination that a

comprehensive plan fails-to discourage urban sprawl. See Rule 9J-5.006 (5) (d), F.A.C. The findings of fact amply support the Hearing Officer's conclusion that:

Clearly, without the Overlay, the potential for urban sprawl increases. With the County's wide use of mixed land use categories without percentage distributions among uses, elimination of the Overlay opens more land, including more vacant land, to immediate development and reduces the plan's degree of control over urban sprawl. [CL 188]

Lee Exceptions 20, 22, 23, 24, 25, 26, 48, 49, 50, 52, 53, 54 and

Alico Exceptions 21 & 22 are DENIED.

ALICO EXCEPTIONS 1-6 19 20 41-44 48:

INDUSTRIAL AND COMMERCIAL ALLOCATION.

Alico takes exception to provisions of the Recommended Order involving industrial and commercial land use allocation in Lee County. Alico points to the testimony of some of the County's witnesses (O'Connor and Landers) as support for its position.

However, the Hearing Officer clearly gave more weight to the testimony of the Department's witness (Nelson, T 2502-2504) on these issues. Alico did not demonstrate that the findings of fact are not based on competent substantial evidence.

Alico Exceptions 1-6, 19, 20, 41-44, 48 are DENIED.

LEE EXCEPTIONS 3, 16, 27, 35 and ALICO EXCEPTIONS 30, 33, 49, 50: LEHIGH ACRES.

Clearly, Lehigh Acres presents a special problem for Lee County for the purposes of comprehensive planning, however we cannot ignore the problem or plan as if Lehigh Acres were not a part of the unincorporated portion of Lee County. The Growth Management Act states that local governments have the ". . .power and responsibility to plan for their future development and growth." § 163.3167(1)(a). Counties are required to exercise planning authority for the entire unincorporated area under their jurisdiction. § 163.3177(2), Fla. Stat.

Alico suggests that the Hearing Officer erred in recommending that population growth be directed to Lehigh Acres, rather than elsewhere in Lee County. However, the decision to approve urban-density development of Lehigh Acres was made many years ago. The subdivision roads in Lehigh are built, and the lots have been sold to buyers all over the world. [FF 50] It is naive to pretend that Lehigh does not exist, and to approve

thousands of more residential units elsewhere in Lee County.

The Urban Sprawl rule requires an analysis of " . . . the extent to which the existing pattern of development (built and vested) reflects urban sprawl." Rule 9J-5.006(5)(I)5., F.A.C. Lee County and the Department agree that Lehigh Acres is a classic example of urban sprawl. Although Lehigh Acres is large enough to accommodate all projected Lee County population growth to 2020 and beyond [FF 54; Lee County Exceptions, p 4], Lee County asserts that even more development must be accommodated by the 2020 Lee Plan. Although Lehigh Acres is a special problem [FF 49], the solutions recommended by the Hearing Officer are reasonable.

Lee Exceptions 3, 16, 27, 35 and Alico Exceptions 30, 33, 49 and

50 are DENIED.

LEE EXCEPTIONS 4, 5, 6, 44, 45, 55 and ALICO EXCEPTIONS 7, 9,

15, 16, 17 & 18: THE AC MAP AMENDMENT

Lee County suggests that because the Hearing Officer determined that the Alico amendment property is not unsuitable for the Airport Commerce use [FF 99], it necessarily follows that the land is "needed" or that use. Lee County does not claim that any findings of fact are not based on competent substantial evidence. The County confuses the issue of the need for the additional acreage of land in the airport commerce designation to accommodate the projected population (Rule 9J-5.006 (2)(c), F.A.C.) with the separate issue of the "suitability" of the land for the airport commerce use (Rule 9J-5.006(2)(c), F.A.C).

Additionally, the County asks the Commission to ignore the analysis in the Lee Plan of the need for industrial acreage (Robert's methodology) and to use in its stead an ill-defined concept of "need" that has no basis in Rule 9J-5, F.A.C., or Chapter 163, Part II, Fla. Stat. This request must also be rejected. All of the Hearing Officer's findings are based on competent substantial evidence in the record and should not be disturbed.

Alico claims that certain findings of fact are inconsistent with each other. However, the alleged inconsistencies are without foundation. There is no inconsistency between the finding (paragraph 97) that 1400 acres were changed to the Airport Commerce (AC) designation and the later finding (paragraph 110) that only 600 of the 1400 acres can actually be used for AC purposes. Also, the finding that the land is not "needed" for the AC use(paragraph 111) is not inconsistent with the earlier findings (paragraphs 107 through 109) that the land should be viewed as a valuable economic resource in need of

protection.

Alico also claims that in certain findings the Hearing Officer miscalculates acreage totals and misapplies the Roberts' methodology. However, Alico has failed to show that the referenced findings of fact are not based on competent substantial evidence.

Lee Exceptions 4, 5, 6, 44, 45, 55 and Alico Exceptions 7, 9,

15, 16, 17 & 18 are DENIED.

LEE EXCEPTIONS 40, 41, 42, 43, 57:

COASTAL HIGH HAZARD AREA DENSITIES & HURRICANE EVACUATION.

The County asserts that the question of whether elimination of the 2010 Overlay opened any additional land to immediate development in the Coastal High Hazard Area (CHHA) is irrelevant. However, the Hearing Officer found that

89. Elimination of the 2010 Overlay opened additional land to immediate development in the CHHA. There was no data and analysis on the amount of new land opened to immediate development or the additional population accommodated in the CHHA that would result.

The County has failed to show that the finding of fact 89 is not supported by competent substantial evidence. Finding of fact

89 is consistent with the finding that deletion of the 2010 Overlay would increase population accommodation. See finding of fact 32.

Lee Exceptions 40, 41, 42, 43, 57 are DENIED.

LEE EXCEPTION 58: THE HEARING OFFICER'S RECOMMENDATIONS.

Lee County objects to the inclusion of specific recommendations for remedial plan amendments as a usurpation of the Administration Commission's role. However, since the recommendations for remedial actions are no more than recommendations which can be accepted or rejected as the Administration Commission deems appropriate, we do not conclude that the Hearing Officer usurped the role of the Commission.

Lee County also objects that the recommendations are not specific enough. Lee County proposes to eliminate the 2010 Overlay, an integral part of the FLUM, and the main strategy in the presently effective Lee Plan to discourage urban sprawl. If Lee County does abandon the 2010 Overlay, the County must devise

a different approach to discouraging urban sprawl in order to remain in compliance with the Growth Management Act. The remedial actions in the Hearing Officer's recommendations provide the guidance needed to devise the new approach.

Lee County also suggests that there is no competent substantial evidence in the record to support the recommendations. However, the testimony of Dr. Nelson [T345-350] supports the recommendations.

Lee Exception 58 is DENIED.

THE EXCEPTION IV: GENERAL EXCEPTION

Lee County objects generally to the Hearing Officer's rulings on the parties' proposed findings of fact that are inconsistent with the County's position. This exception provides no additional reasoning, or even a listing of the rulings to which objections are made. The Commission is unable to rule upon such a general exception.

Exception IV is DENIED.

RULINGS ON ZEMEL'S EXCEPTIONS ZEMEL EXCEPTION 1: OPEN LANDS

Zemel contends that finding of fact 120 is not supported by competent substantial evidence. Finding of fact 120 states:

120. Lee County chose the Open Lands category for the Zemel property because it was the least intensive land use category available after the circuit court determined that the DRGR category was not appropriate, and because the County did not wish to exacerbate the overallocation of the FLVM.

The Hearing Officer's characterization of Lee County's motivation for choosing the Open Lands category is consistent with the County's view. [See Lee County's Proposed Recommended Order p 47] Finding of fact 120 is also supported by the EAR which contains an analysis [Jt Ex 2, Vol 1, Ex I, p 7-12] of the Zemel property under the name of the "Yucca Pen property." Lee County stated in the EAR that:

[T]he Yucca Pen property lacks urban services, is (at least in its interior) distant from existing urban developments, lacks potential for non-residential uses, and contains large quantities of environmentally sensitive lands. In light of DCA's position

in many plan compliance eases that one unit per acre is an "urban" density, it is clear that any attempt by Lee County to reclassify the Yucca Pen property to the Rural category would be viewed by the Department as a violation of Rule 9J-5.006(3)(b)7. [Jt Ex 2, Vol 1, Ex I, p 11]

Finding of fact 120 is also supported by the testimony of the Lee County Planning Director, Paul O'Connor, at T955.

Zemel Exception 1 is DENIED.

ZEMEL EXCEPTION 2 & 3: SPARSELY DEVELOPED

Zemel objects to most of the statements in finding of fact

122. However, each statement of fact is supported by competent substantial evidence.

The Zemel property is located "north of areas that can be said to be 'sparsely developed.'" The northern portion of the City of Cape Coral, located to the south of the Zemel property, is not anticipated to build out within the 2020 planning time frame of the Lee Plan. [Testimony of Depew T1055; Jt Ex 2, Vol I, Ex I, p l2]

The Zemel property is " . . . characterized by agricultural use." [Testimony of Depew T1016, 1057]

All of the Zemel property is " . . . 'extremely remote' from at least some public services, and some of the Zemel property can be said to be 'extremely remote' from all public services." The lack of public service availability is documented in the EAR. [Jt Ex 2, Vol 1, Ex I, p 11] Even Zemel's expert planning witness testified that utility service is not yet available to the Zemel property [T1012-1013], and that much of the planned City of Cape Coral public services which may be provided adjacent to the Zemel property [T1014] will not be available during the 2020-planning time frame or the Lee Plan. [T1055]

Zemel argues that the Hearing Officer was bound to accept the opinion of Zemel's expert planner that the Zemel property does not meet the definitional portion of Policy 1.4.4. [T1015] However, the trier of fact may reject the opinion of an expert even if it is uncontroverted. Behm v. Division of Administration, 292 So. 2d 437 (Fla. 4th DCA 1974), aff'd., 336 So. 2d 579 (1976); Nettles v. State, 409 So. 2d 85 (Fla. 1st DCA 1982). Expert testimony, though persuasive, is not conclusive or binding, and the trier of fact is free to determine the

credibility and to decide the weight of such evidence. Trolinger v. State, 300 So. 2d 310 (Fla. 2d DCA 1974); Russo v. Heil Construction, Inc., 549 So. 2d 676 (Fla. 5th DCA 1989). An expert opinion may be rejected if the facts upon which it is based are not proven. Smith v. State, 314 So. 2d 226 (Fla. 4th DCA 1975), cert. discharged, 343 So. 2d 598 (1977); Victoria Hospital v. Perez, 395 So. 2d 1165 (Fla. lst DCA 1981). "An expert opinion based upon facts not supported by the record cannot constitute proof of the facts necessary to support the opinion, and is not competent substantial evidence." R. P. Hewitt & Associates of Florida, Inc. v. McKimie, 414 So. 2d 1230 (Fla. 1st DCA 1982)

Zemel Exceptions 2 & 3 are DENIED. ZEMEL EXCEPTIONS 4 & 5

Zemel takes exception to the Hearing Officer's finding that the Zemel property could reasonably be expected to develop at the standard density of 1 du/ac in the Rural land use category, and that the PDDO option would allow a density of up to 6 du/ac.

However, both findings of fact are supported by competent substantial evidence.

The PDDO option clearly allows a residential density of six dwelling units per acre within the Rural land use designation. [See Proposed 1994 Lee Plan, Jt Ex 8, Objective 1.8 and Table 1; and the testimony of Mr. Depew T1046] The population that could be supported by the Zemel property under the Rural or the Open Lands designations is supported by the EAR [Jt Ex 2, Vol 1, Ex I, p 12] and by the testimony of the Lee County Planning Director [T956]. Zemel is one of the few land owners in Lee County with a large enough holding to contemplate a PDDO [T1047], and the Hearing Officer drew a logical conclusion that the Zemel holdings could reasonably be expected to develop at the standard density for the Rural land use designation.

RULINGS ON DCA'S EXCEPTIONS

DCA's EXCEPTION 1: WETLANDS PROTECTION

DCA contends that the portion of finding of fact 143 which relates to Policy 84.1.4 is not supported by competent substantial evidence. Finding of fact 143 states:

New Policies 84.1.2 and 84.1.4 in effect defer performance standards covering development in wetlands to the state and water management district permitting processes. The Lee amendments are an attempt

to avoid duplicating what state agencies accomplish through their permitting programs.

New Policy 84.1.4 states:

Land uses in uplands will be regulated through the implementation of the Land Development Code to avoid degrading the values and functions of adjoining and nearby wetlands. (Emphasis added.)

It is evident from the plain language of Policy 84.1.4 that it does not address development in wetlands. Also, contrary to the hearing officer's finding, policy 84.1.4 does not defer performance standards to the state and water management district permitting processes. On its face, the policy defers the establishment of guidelines and standards for development in uplands that are adjacent to or nearby wetlands to the 'and development regulation (LDR) process. The hearing officer's inclusion of policy 84.1.4 in finding of fact 143 is erroneous.

DCA also contends that the hearing officer's related ruling on its proposed finding of fact 115 should be rejected. In ruling on the proposed finding, the hearing officer accepted the proposed fact that Policy 84.1.4 provides no meaningful development standards or guidelines for LDRs. (R.O. at 92). The hearing officer also accepted the proposed fact that the policy fails to identify any implementing activities to ensure that the wetlands will not be degraded by the adverse impacts from development in the adjacent and nearby uplands. (R.O. at 92).

However, the hearing officer rejected the ultimate sentence in the proposed finding as "not proven by a preponderance of the evidence and as a conclusion of law." That sentence states:

As such, this provision fails to meet the Rule 9J-5, F.A.C., definition of a 'policy' and, therefore, fails to meet the specific Rule 9J-5, F.A.C., requirements for wetland protection policies.

DCA is correct in that, as written, policy 84.1.4 fails to meet the definition of a policy, however, we must agree with the hearing officer's characterization of this sentence as a conclusion of law, and the hearing officer's findings and conclusions that taken as a whole, the county's comprehensive plan goals and policies do ensure protection to wetlands.

Therefore, the Department's exception is granted only to the extent that the reference to policy 84.1.4 in finding of fact 143 is stricken. Further, should the county choose to withdraw this amendment, this issue would be moot. Any implication in

Conclusion of Law 21C that DCA has the statutory authority to look only at densities and intensities for uses in wetlands is rejected.

DCA's EXCEPTION 2: RIGHTS-OF-WAY

DCA contends that finding of fact 154 is an incorrect conclusion of law. Finding of fact 154 states:

The County has made these changes because legally it appears that reservation of future right-of-way may no-longer be a viable option after the decision in Joint Ventures, Inc., v. Dept. Of Transportation, 563 So. 2d 622 (Fla. 1990).

The DCA's exceptions to Finding of Fact 154 must be rejected because the Hearing Officer's finding is factually correct as to why the County made its decision to eliminate these policies.

The issue of whether or not the County was correct in its interpretation of the operable legal standards is irrelevant to the factual conclusion that the County's interpretation, whatever it was, drove its decision to eliminate these policy requirements. Because Finding of Fact 154 is factually accurate, and is supported by competent, substantial evidence of record, the Department's exception is hereby denied.

IMPLEMENTATION OF STIPULATIONS

Prior to the completion of the final hearing, Lee County and the Department entered into two Stipulations which partially settled the issues raised by the Department. These Stipulations contemplated that this Final Order would include provisions to implement the partial settlement. Therefore, pursuant to the first Stipulation, Lee County is directed to:

1. Amend the Lee County Comprehensive Plan ("the Lee Plan") in the next round of amendments to delete all non-backlogged and non-constrained roads from Table 2(a) and (b) of the Lee Plan, Concurrency Management Element (Backlogged and Constrained Road List).

   
   

2. Amend the Lee Plan in the next round of amendments to delete Policy 22.1.11 in its entirety, including the current existing policy and the changes to the policy as adopted by Lee County Ordinance No. 94-30. Pursuant to the Second Stipulation To Resolve Pending Issues, the Commission recognizes that counsel for Lee County and the Department have entered into a stipulation that certain language regarding the effective date of Lee County Ordinance #94-30 is ultra vires.

COMPLIANCE DETERMINATION AND REMEDIAL ACTIONS

Pursuant to §§ 163.3184(11)(a) and .3189(2)(b), Fla. Stat., the Commission is authorized to specify remedial actions which would bring the plan amendments into compliance. The Commission specifies that the following amendments are not in compliance with Chapter 163, Part II, Fla. Stat., and Rule 9J-S, F.A.C., and should be rescinded, and not made effective, in order to bring the plan amendments as a whole into compliance:

1. Amendments to the Future Land Use Map series which delete the 2010 Overlay Provisions, including the 2010 Overlay Maps (identified as Maps 16 and 17 of the Future Land Use Element).

   
   

2. Amendments to the Future Land Use Element Goal 1; Policies 1.1.1, 1.3.5, and 2.2.2, which delete the 2010 Overlay provisions.

   
   

3. An amendment to the Future Land Use Map for Area L, an area known as Lehigh Acres, which changes the land use for 60,000

   acres from Central Urban and Urban Community to Vested Community; and Provisions 2, 3, and 4 of Future Land Use Policy 1.1.5 which establish the allowable uses within this new category without

   specifying the types of uses, the composition of the mix of uses and their relative densities and intensities of use.

   
   

4. An amendment to the Future Land Use Element, Policy 1.1.5, establishing the new Vested Community land use category for Lehigh Acres.

   
   

5. Amendments to Coastal Element Objective 79.1 deferring a commitment to maintain or reduce hurricane evacuation times.

Lee County should rescind the amendments listed above by October 1, 1996. With respect to rescinding item 1 above (Amendments to the Future Land Use Map series which delete the 2010 Overlay Provisions), we recognize that this will create some inconsistencies in that there have been recent amendments in land use categories, which the county has elected to put into effect, without any allocation in the 2010 Overlay for that category.

This is true of the Zemel property and perhaps other EAR-based map amendments. In the case of Zemel, the county has changed the land use category for the Zemel property on the Future Land Use Map from DRGR to Open Lands, however, the 2010 Overlay does not provide for Open Lands. Because of the inconsistency raised by Zemel, the county may choose to rescind the map amendment from DRGR to Open Lands and net make it effective. If it becomes apparent that there are similar inconsistencies between the 2010 Overlay and other EAR-based map amendments, the Department is directed to assist the county in remedying the inconsistencies in a manner which is in compliance with Chapter 163, Part II, Fla.

Stat., and this Final Order. The Commission recognizes that such a remedy may require an emergency plan amendment.

In light or the hearing officer's finding that the Alico property is perfectly suited to the "AC" (Airport Commerce) designation, and in light of his finding that the County has a legitimate need to diversify its economy so that it is not so dependent on tourism, the land use change from DRGR to AC on the 1400 acre Alico property is hereby approved, conditioned on the following remedial actions by Lee County:

1. Amend the Lee County plan to include a policy or policies to ensure that any future plan amendments take into account the commercial and light industrial uses included in this AC designation; and

   
   

2. Amend the Lee County plan to include a policy or policies to discourage further land use map amendments in the southeast portion of the county.

Remedial amendments required above shall be developed by Lee County and submitted to the Department of Community Affairs no

later than December 1. 1996. The Department shall review the plan amendments for consistency with Chapter 163, Part II, Fla.

Stat., Rule 9J-5, F.A.C., and this Final Order and provide a recommendation of consistency to the Administration Commission no later than January 1 1997.

Should Lee County elect to maintain Conservation Policy 84.1.4, we strongly encourage that it be amended to establish guidelines and standards for land uses in uplands, adjacent to and nearby wetlands, rather than deferring these guidelines and standards to the land development regulations.

The portion of the EAR-based amendments not listed above are in compliance and shall become effective pursuant to

§163.3189(2)(a), Fla. Stat.

Although this Final Order determines that deletion of the 2010 Overlay in the manner proposed by the EAR-based amendments is not in compliance, that determination does not mean that Lee County must retain the 2010 Overlay indefinitely, or that the 2010 Overlay is the only planning tool appropriate for Lee County. The 2010 Overlay can be deleted from the Lee Plan if alternative planning controls are established to compensate for the deletion of the 2010 Overlay. The County should consider the recommendation of the Hearing Officer included in the Recommended Order as guidance for any future plan amendments regarding the issues of this proceeding.

SANCTIONS

Pursuant to §163.3189(2)(b), Fla. Stat., Lee County may elect to make the above-listed plan amendments effective notwithstanding the determination of noncompliance stated in this final order. If Lee County rescinds the above-listed plan amendments by October 1, 1996, no sanctions shall be imposed.

However, if Lee County fails to rescind these amendments and instead elects to make any of the above-listed plan amendments effective, Lee County shall be subject to the following sanctions pursuant to §163.3184(11), Fla. Stat. Additionally, if Lee County fails to adopt the remedial amendments required for the AC land use change on the Alico property as directed herein, Lee County shall be subject to the following sanctions pursuant to section 163.3184(11), Fla. Stat.:

1. All state agencies will be directed not to provide funds to increase the capacity of roads, bridges, or water and sewer systems within the boundaries of Lee County.

   
   

2. Lee County will not be eligible for grants administered under:

   
   

   • the Florida Small Cities Community Development Block Grant

     Program, as authorized by §§290.0401-290.049.

     
     

   • the Florida Recreation Development Assistance Program, as authorized by chapter 375.

     
     

   • Revenue sharing pursuant to §§206.60, 210.20, and 218.61 and part I of chapter 212, to the extent not pledged to pay back bonds.

     
     

3. Lee County will not be eligible for funding pursuant to

§161.091, the Beach Management Trust Fund.

In the event the County elects to make the plan amendments effective, the Secretary of the Commission is directed to notify the appropriate state agencies to immediately begin imposition of the sanctions stated above, and to continue the imposition of these sanctions until the county's plan has been amended and determined to be in compliance pursuant to Chapter 163, Part II, Fla. Stat.

Any party to this order has the right to seek judicial review of the order pursuant to section 120.66, Fla. Stat., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Commission, Office of Planning and Budgeting, Executive Office of the Governor, the Capitol, Room 2105, Tallahassee, Florida 32399- 0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal. Notice of Appeal must be filed within 30 days of the day this order is filed with the Clerk of the Commission.

DONE and ORDERED this 25th day of July, 1996.

Teresa B. Tinker (for) ROBERT B. BRADLEY, Secretary

Administration Commission

FILED with the Clerk of the Administration Commission the 25th day of July, 1996.

Barbara Leighly

CLERK, Administration Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered to the following parties by U. S. Mail or hand delivery this 25th day of July, 1996.

Teresa B. Tinker (for) Robert B. Bradley, Secretary Administration Commission

COPIES FURNISHED:

Honorable Lawton Chiles Governor

The Capitol Tallahassee, FL 32399

Honorable Sandra Mortham Secretary of State

The Capitol Tallahassee, FL 32399

Honorable Bob Milligan Comptroller

The Capitol Tallahassee, FL 32399

Honorable Bill Nelson Insurance Commissioner The Capitol Tallahassee, FL 32399

Honorable Bob Butterworth Attorney General

The Capitol Tallahassee, FL 32399

Honorable Frank Brogan Commissioner of Education The Capitol

Tallahassee, FL 32399

Honorable Bob Crawford Commissioner of Agriculture The Capitol

Tallahassee, FL 32399

Greg Smith, Esq.

Counsel to the Governor & Cabinet The Capitol, Room 209 Tallahassee, FL 32399

Stephanie Gehres, General Counsel David Jordan, Deputy General Counsel

Brigette Ffolkes, Assistant General Counsel Dept. of Community Affairs

2550 Shumard Oak Boulevard Tallahassee, FL 32399-2100

Timothy Jones, Esquire

Assistant County Attorney Post Office Box 398

Fort Myers, FL 33902-0398

Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, FL 33712

Kenneth G. Oertel, Esquire Scott Shirley, Esquire Oertel, Hoffman, Fernandez &

Cole, P.A.

Post Office Box 6507 Tallahassee, FL 32314-6507

Russell P. Schropp, Esquire Henderson, Franklin, Starnes &

Holt

Post Office Box 280 Fort Myers, FL 33902

Charles J. Basinait, Esquire Henderson, Franklin, Starnes &

Holt

Post Office Box 280 Ft. Myers, FL 33902

Elizabeth C. Bowman, Esquire Connie C. Durrence, Esquire Hopping, Boyd, Sams & Smith

123 South Calhoun Street Tallahassee, FL 32314

Neale Montgomery, Esquire Pavese, Garner, Haverfield,

Dalton, Harrison & Jensem Post Office Drawer 1507 Fort Myers, FL 33902

Steven C. Hartsell, Esquire Pavese, Garner, Haverfield, Dalton, Harrison & Jensen

Post Office Drawer 1507 Fort Myers, FL 33902

Thomas B. Hart, Esquire Humphrey & Knott, P.A.

1625 Hendry Street, Suite 301 Post Ofice Box 2449

Fort Myers, FL 33902

Virginia Wetherell, Secretary Department of Environmental Protection Marjory Stoneman Douglas Bldg.

3900 Commonwealth Blvd.

Tallahassee, FL 32399-2400

James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Blvd.

Tallahassee, FL 32399-2100

Ben Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Road

Tallahassee, FL 32399-0450

L. H. Fuchs, Executive Director Department of Revenue Tallahassee, FL 32399-0100

Michael J. Ciccarone, Esquire Goldberg, Goldstein & Buckley, P.A. Post Office Box 2366

Fort Myers, FL 33902

Docket for Case No: 95-000098GM

Orders for Case No: 95-000098GM