STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENVIRONMENTAL COALITION OF )

BROWARD COUNTY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-1464GM

) DEPARTMENT OF COMMUNITY AFFAIRS, ) and BROWARD COUNTY, )

)

Respondents, )

and )

)

MIRAMAR LAKES, INC., d/b/a ) MIRAMAR ROCK, ROBERT A. WHITCOMBE, )

as Successor Trustee of the South ) Broward Trust, THE SOUTH BROWARD ) TRUST and ATLANTIC GULF )

COMMUNITIES CORPORATION, )

)

Intervenors. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on May 8 and 9, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Jack Milbery, Esquire

Brion Blackwelder, Esquire

8751 West Broward Boulevard, Number 206

Plantation, Florida 33324

For Respondent, Sherry A. Spiers Department of Assistant General Counsel

Community Department of Community Affairs Affairs: 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent, Tracy Lautenschlager, Esquire Broward County: Broward County Attorney's Office

115 South Andrews Avenue, Suite 423 Fort Lauderdale, Florida 33301

For Intervenors: Glenn Smith, Esquire

Michael A. Cohn, Esquire

Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A.

200 East Broward Boulevard Post Office Box 1900

Fort Lauderdale, Florida 33302 STATEMENT OF THE ISSUE

The issue in this case is whether an amendment to the Broward County Comprehensive Plan, PC 94-15, is "in compliance" within the meaning of Section 163.3184(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

On December 20, 1994, Respondent, Broward County, adopted an amendment, PC 94-15, to the Broward County Land Use Plan, by Ordinance Number 94-55. The amendment was reviewed by the Department of Community Affairs pursuant to Chapter 163, Florida Statutes, and found to be "in compliance."

On March 8, 1995, a Petition for Formal Administrative Hearing by Environmental Coalition of Broward County, Inc., was filed with the Department of Community Affairs challenging the proposed amendment. The petition was filed with the Division of Administrative Hearings on March 27, 1995. The matter was designated case number 95-1464GM and was assigned to the undersigned.

On April 3, 1995, Intervenors filed a Motion to Intervene, Intervenors' Motion to Expedite Final Hearing and Intervenors' Motion to Dismiss. No response was timely filed to these motions.

On April 20, 1995, the Motion to Intervene and the motion to expedite were granted. A Notice of Hearing scheduling the final hearing for May 8-11, 1995, was entered. The Motion to Dismiss was denied.

At the commencement of the final hearing, Petitioner limited the issues it raised in its petition to the following:

1. Whether the proper data and methodology were used in the evaluation of the property which is the subject of the amendment at issue in terms of the impact on the "East Coast Buffer"; and

   
   

2. Whether there is a need for additional residential development in the area of Broward County where the property is located.

A motion to amend the petition filed by Petitioners was made at the commencement of the hearing. The motion was denied.

Petitioner presented the testimony of Patti Webster, David Propseri, John Ogden, Robert Johnson and Douglas Morrison, Ph.D. Petitioner offered 10 exhibits. All were accepted into evidence except Petitioner's exhibit 10.

Broward County presented the testimony of Henry Sniezek and Frank Duke.

Broward County offered 8 exhibits. All were accepted into evidence.

The Department of Community Affairs presented the testimony of John Healey and offered 3 exhibits. All three exhibits were accepted into evidence.

Intervenors called no witnesses and offered no exhibits.

The transcript of the final hearing was filed on May 26, 1995. The parties had agreed to file proposed recommended orders within 10 days after the filing of the transcript. Two extensions of time were subsequently requested and granted. Proposed recommended orders were, therefore, to be filed on or before June 23, 1995. Petitioner and Broward County filed separate proposed orders.

The Department of Community Affairs and Intervenors filed a joint proposed order.

The proposed orders filed by the parties contain proposed findings of fact.

A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, the Environmental Coalition of Broward County, Inc. (hereinafter referred to as the "Coalition"), is a Florida corporation.

      
      

   2. The Coalition has offices located in Broward County. The Coalition has approximately 500 members, most of whom reside in Broward County.

      
      

   3. A substantial number of the Coalition's members own property in Broward County and/or operate businesses within Broward County.

      
      

   4. The Coalition is a not-for-profit corporation, chartered for educational and scientific purposes. The primary purpose of the Coalition is to present objections and recommendations to local governments concerning planning issues on behalf of its membership.

      
      

   5. The Coalition is authorized to participate in actions of this type and to represent its membership in administrative proceedings.

      
      

   6. The Coalition presented oral and written objections to Broward County during the review and adoption process concerning the plan amendment at issue in this proceeding.

      
      

   7. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is the state agency charged with the responsibility of implementing the Local Government Comprehensive Planning and Land Development Act, Chapter 163, Part II, Florida Statutes (hereinafter referred to as the "Act"). Among other things, the Department is required to review local government comprehensive plans and amendments thereto for compliance with the Act.

      
      

   8. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government with the authority pursuant to the Act and the Broward County Charter to adopt and amend a comprehensive plan. The County has adopted the 1989 Broward County Comprehensive Plan (hereinafter referred to as the "Plan").

      
      

   9. The Broward County Board of County Commissioners (hereinafter referred to as the "County Commission"), is the local planning agency for the County.

   10. The County Commission is advised on land use planning issues by the Broward County Planning Council (hereinafter referred to as the "Planning Council"). The Planning Council was created by the County Charter.

       
       

   11. Intervenors, Miramar Lakes, Inc., d/b/a Miramar Rock, Robert A. Whitcombe, Trustee, and the South Broward Trust own or have under contract virtually all of the property affected by the Plan amendment which is the subject of this proceeding. These Intervenors have entered into a joint venture agreement with Intervenor Atlantic Gulf Communities Corporation to develop the subject property. Intervenors applied for the amendment that is the subject of this proceeding and presented oral or written comments, recommendations and objections during the period of time between the transmittal hearing and adoption of the subject Plan amendment.

       
       

2. The County's Plan.

   
   

   1. The County adopted a comprehensive plan as required by the Act in 1989. The planning horizon of the plan is 2010.

      
      

   2. The Plan includes two volumes of text, two volumes of support documents and associated maps. See Petitioner's exhibit 8. Volume One is text and is effective countywide. Volume Three contains support documents for the Plan.

      
      

   3. The Plan also includes the 1989 Broward County Future Land Use Plan Map (Series) (hereinafter referred to as the "FLUM").

      
      

   4. The FLUM depicts the proposed distribution, extent and location of categories of land uses allowed under the Plan. Among others, those land uses include "residential" at various densities and "agricultural".

      
      

   5. Pursuant to the Plan, the eastern approximately one-third of the County may be developed. The developable area consists of approximately 400 square miles of land area.

      
      

   6. The western approximately two-thirds of the County are designated as water conservation areas and are separated by a levee from the developable one- third.

      
      

   7. Future land use elements of municipal comprehensive plans in the County must be in substantial conformity to the Plan.

      
      

3. The Subject Property.

   
   

   1. The property which is the subject of the Plan amendment at issue in this case consists of 1,280 acres of a total of 1,965 acres (hereinafter referred to as the "Property").

      
      

   2. The Property is located in the City of Miramar, in southwest Broward County, Florida, Sections 25, 26, 27 and 36, Township 51 South, Range 39 East.

      
      

   3. The Property is located in the southwestern portion of the developable one-third of the County. See Map 1 of Broward County exhibit 1.

      
      

   4. The Property is bounded on the east by S.W. 184th Avenue and on the north by Honey Hill Road. It is east of U.S. Highway 27.

   5. Part of the Property is vacant. Part of the Property is being used as cattle pasture and for a rock mining, batching, mixing and crushing operation.

      
      

   6. Existing land uses in the vicinity of the Property include vacant land, rock mining and some development to the north, single-family residential development to the east, rock mining and vacant land to the south, in Dade County, Florida. Residential development immediately to the east in a development known as "Silverlakes" is being developed at a density of three dwelling units per acre.

      
      

   7. Further to the west of the Property is the eastern boundary of the water conservation areas of the Everglades. These areas are separated from the rest of Broward County by a levee.

      
      

   8. The land use designation of the Property and other property in the surrounding area is "agricultural". Under the Plan, the land use designation allows agricultural uses and residential development of one dwelling per 2.5 acres.

      
      

   9. Under its current land use designation, a total of 786 dwelling units may be developed on the Property.

      
      

4. The First Amendment Requested by the Intervenors.

   
   

   1. In early 1994 Intervenors filed an application with the County seeking an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Low (2) Residential". "Low (2) Residential" allows the development of two dwelling units per acre.

      
      

   2. The Planning Council conducted a review of the proposed amendment. The Broward County Department of Natural Resource Protection raised objections to the proposed amendment because the Property is located in an area of water

   recharge and wetlands. The area is identified as within a general wetlands area on the "Southwestern Generalized Wetlands Map" of the Plan.

   
   

   30 Based upon the objections of the County Department of Natural Resource Protection, the staff of the Planning Council recommended denial of the proposed amendment.

   
   

   1. The South Florida Water Management District (hereinafter referred to as the "SFWMD"), an agency with broad regional responsibility for water management in southeast Florida, raised objections with the Planning Council concerning the location of the property in an area which was being considered for use as part of a project to restore the Everglades.

      
      

   2. The SFWMD was concerned that the Property is located within an area which has come to be known as the "East Coast Buffer". In early 1994, at the time of the initial review of the proposed amendment, the East Coast Buffer was a study area abutting the eastern water conservation areas of southeast Florida.

      
      

   3. The SFWMD was studying the East Coast Buffer for use in water conservation efforts in southeast Florida. At the time of the first review of the proposed amendment, the portion of the East Coast Buffer in which the Property is located was being considered for preservation as a reservoir site.

   4. The Planning Council transmitted the proposed amendment to the County Commission without recommendation.

      
      

   5. The County Commission decided not to transmit the proposed amendment to the Department for its review, ending review of the initial application.

      
      

5. The Initial Review of the Subject Amendment.

   
   

   1. A second application on the Property was resubmitted by the Intervenors in March of 1994. The application was designated Application PC 94- 15.

      
      

   2. Application PC 94-15 sought an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Irregular 1.5 Residential". "Irregular 1.5 Residential" allows 1.5 dwelling units per acre.

      
      

   3. The amendment sought by Intervenors would have allowed an increase from 786 dwelling units to 2,947 dwelling units on the Property. An increase of 2,161 units.

      
      

   4. Application PC 94-15 was again reviewed. The same comments about, and objections to, the proposed amendment were raised concerning groundwater and aquifer recharge.

      
      

   5. The staff of the Planning Council again recommended denial of the proposed amendment.

   
   

   41 The Planning Council recommended transmittal of the application, subject to the Intervenors satisfying the concerns raised by the SFWMD.

   
   

   1. On August 17, 1994, the County Commission transmitted Application PC 94-15 to the Department, conditioned upon the Intervenors satisfying the concerns of the SFWMD.

      
      

   2. The SFWMD objected to Application PC 94-15 because of its conclusion that the proposed future land use designation was not compatible with the East Coast Buffer then under evaluation by the SFWMD.

      
      

   3. SFWMD had developed data and conducted computer modeling concerning the utilization of a buffer for a variety of purposes, including reducing seepage of water from the Everglades, increasing groundwater recharge into aquifers and creating a natural buffer to protect the Everglades from the impacts of development. The SFWMD had commissioned a worldwide engineering firm, CH2M Hill to prepare a report on the East Coast Buffer.

      
      

   4. The SFWMD recommended that Application PC 94-15 not be approved until it had completed its study of the East Coast Buffer because the land use designation being sought might be incompatible with the conclusions reached from the SFWMD's and CH2M Hill's evaluation.

      
      

   5. The Department reviewed Application PC 94-15 and, based upon comments from the SFWMD similar to those raised before the County Commission, issued an Objections, Recommendations and Comments report concerning Application PC 94-15. The Department raised objections consistent with the adverse comments from the SFWMD.

6. Modification of the Proposed Amendment.

   
   

   1. Parts of southwestern Broward County and northwestern Dade County were designated "Management Unit 5" by the SFWMD. Management Unit 5 was being considered, as recommended by CH2M Hill, as a reservoir area. Development of the Property was, therefore, not considered to be a use comparable with the concept of the East Coast Buffer being considered by the SFWMD at the time of the County's and Department's decision to reject Application PC 94-15.

      
      

   2. Intervenors worked with the SFWMD in an effort to find a way of modifying Application PC 94-15 to satisfy the SFWMD's concerns. SFWMD utilized computer modeling to simulate groundwater and surface water flows in Management Unit 5 to determine the impact of allowing development of the Property.

      
      

   3. The SFWMD concluded that Management Unit 5 was more suitable as a recharge area rather than as a reservoir. This conclusion was based, in part, of the transmissibility of the soil and other site conditions which were not conducive to storing water above ground for long periods of time.

      
      

   4. Use of Management Unit 5 as a recharge area and not a reservoir requires less surface area. Therefore, it was concluded that development in the area might be compatible with the SFWMD's East Coast Buffer concept.

      
      

   5. The SFWMD modeled four development alternatives for Management Unit 5 and analyzed the impact of each alternative on the efforts to retard seepage, provide groundwater recharge and enhance wetland benefits: (a) retaining the Property as a recharge area and allowing no development; (b) retaining the entire western two-thirds as a recharge area and allowing development of the eastern one-third; (c) retaining the western one-third as a recharge area and allowing development of the eastern two-thirds; and (d) allowing development of the entire management unit. Alternatives (b) and (c) assumed that a berm would be constructed between the recharge area and the developed area.

      
      

   6. After meeting with Intervenors and discussing the results of the modeling, Intervenors indicated willingness to remove the western portion of the Property from the proposed development.

      
      

   7. The SFWMD then conducted a more detailed, computer analysis of the following alternatives: (a) continuing existing conditions; (b) constructing a berm around Management Unit 5 and utilizing the entire area as a recharge area;

      (c) constructing a berm between the eastern and western sections of the Management Unit 5 and utilizing the western section for recharge with no development in the eastern section; and (d) alternative "(c)" with development of the eastern section.

      
      

   8. As a result of computer modeling of the alternatives, it was concluded that alternatives (b), (c) and (d) could significantly reduce seepage from the Everglades and increase groundwater recharge in to the aquifers when compared to development under the agricultural land use designation of alternative (a).

      
      

   9. As a result of the more detailed analysis, the SFWMD concluded that essentially all of its goals could be achieved for Management Unit 5 if the western section of Management Unit 5 is preserved even if development is allowed in the eastern section.

      
      

   10. The SFWMD concluded that the eastern two-thirds of the Property, consisting of approximately 1,280 acres, could be developed as "Irregular 1.5

       Residential" if the western one-third, consisting of approximately 685 acres, was utilized as a recharge area.

       
       

   11. Intervenors agreed to preserve the western third of the Property (685 acres) and grant the SFWMD a flowage easement, consistent with the East Coast Buffer and at a savings of $43 million.

       
       

   12. On December 14, 1994, the staff of the SFWMD presented the results of the computer modeling to the SFWMD. On December 15, 1994, the SFWMD withdrew its objection to Application PC 94-15, conditioned upon the deletion of the 685 acres from the application and the granting of a flowage easement. The County and the Department were informed of the decision of the SFWMD.

       
       

7. Approval of Application 94-15.

   
   

   1. On December 20, 1994, the County Commission adopted by Ordinance 94-55 an amendment to the Plan, Amendment PC 94-15 (hereinafter referred to as the "Amendment"), subject to the conditions suggested by the SFWMD, which resolved the SFWMD's objections.

      
      

   2. The Amendment included modifications to the FLUM and text amendments.

      
      

   3. The Amendment, in relevant part, modifies the future land use designation of approximately 1,280 acres of the Property from "Agricultural" to "Irregular 1.5 Residential". This will allow the construction of a total of 1,920 dwelling units on the Property, or an increase of 1,408 dwelling units over the number of dwelling that may be constructed under the current future land use designation for the Property.

      
      

   4. In light of Intervenor's modifications of the application, the removal of the SFWMD's objections and the approval of the application by the County, the Department found the Amendment to be in compliance with the Act. On February 14, 1995, the Department issued a notice of intent to find the Amendment in compliance.

      
      

   5. The County and the Department accepted and relied upon the data and methodology employed by the SFWMD and the conditions for removal of the SFWMD's objections.

      
      

8. Petitioner's Challenge.

1. On or about March 8, 1995, Petitioner filed a Petition for Formal Administrative Hearing with the Department challenging the Amendment.

   
   

2. Petitioner filed an Amended Petition on April 25, 1995.

   
   

3. At the commencement of the final hearing, Petitioner withdrew all issues it had raised in the Amended Petition except the issues of: (a) whether the data and analysis available supports a conclusion that there is a need for additional residential development; and (b) whether the Amendment is supported by data and analysis in light of an ongoing study of the East Coast Buffer.

   
   

   1. Residential Housing Need.

      
      

4. The Plan includes the following Goal and Objective concerning the provision of adequate areas for residential use:

   Goal 01.00.00 Provide residential areas with

   a variety of housing types and densities offering convenient and affordable housing opportunities to all segments of Broward County's population while maintaining a desired quality of life and adequate public services and facilities.

   
   

   Objective 01.01.00 Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods.

   
   

5. The Plan, including the methodology utilized to determine residential need, was found to be in compliance by the Department.

   
   

6. The residential need methodology of the Plan utilized the Broward County Population Forecasting Model to project the population of southwest Broward County in 1994 to be 225,489 people. This projected population formed the basis for the allocation of residential housing units for Subregion 5 under the Plan.

   
   

7. The Property is located in an area of southwest Broward County designated as Subregion 5 in the Plan.

   
   

8. In reviewing the Amendment, the County conducted an analysis of the need for additional residential development in southwest Broward County. This analysis utilized, and was consistent with, the residential need methodology of the Plan. A summary of the data and analysis utilized by the County was provided to the Department.

   
   

9. The County's analysis indicated that the population of Subregion 5 has exceeded the population projections for the Subregion of the Plan.

   
   

10. By 1994, there were 284,361 people living in Subregion 5 or 17,872 more than projected in the Plan.

    
    

11. The increased population rate of growth in Subregion 5 was projected to represent an increase in projected demand for approximately 6,847 residential units in excess of the projected demand expected under the Plan.

    
    

12. The analysis also took into account amendments to the Plan which have resulted in a reduction of 1,087 residential units for Subregion 5.

    
    

13. When combined with the increased population, the data and analysis supports a conclusion that there is a need for 7,934 additional residential units in Subregion 5.

    
    

14. The Amendment increases residential housing in Subregion 5 by 1,134 dwelling units (1,920 units allowed under the Amendment, less 786 dwelling units allowed under the current agriculture classification), well below the projected need for additional residential units for Subregion 5.

15. The data and analysis relied upon by the County and submitted to the Department supports the conclusion of the County that there is need for the proposed additional residential development approved by the Amendment.

    
    

16. The data and analysis relied upon by the County and the Department was professionally acceptable and adequate to support the Amendment.

    
    

17. The evidence presented by Petitioner failed to prove that the data and analysis relied upon by the County and the Department was not professionally acceptable and adequate.

    
    

18. Rather than attempting to prove that the County's methodology was not professionally acceptable or was flawed, Petitioner utilized a methodology based upon an annualized population growth rate for Subregion 5. Petitioner offered evidence that there is sufficient residential housing approved under the Plan to meet the projected population for 15.6 years, beyond the remaining life of the Plan.

    
    

19. The methodology utilized by Petitioner was, by the admission of the Petitioner's own witness, not a professionally acceptable methodology.

    
    

20. The evidence failed to prove that the data and analysis relied upon by the County does not support its conclusion that there is sufficient need for the additional residential housing authorized for the County by the Amendment.

    
    

    1. The East Coast Buffer Zone.

    
    

21. Efforts to restore the Everglades have been initiated and are ongoing. As a part of these efforts a group of technical and scientific staff members of various federal agencies involved in the restoration efforts were formed as the "Science Sub Group."

    
    

22. The Science Sub Group was formed as an advisory group to provide guidance towards ecosystem restoration efforts. The Science Sub Group had no implementing authority. It issued at least one report in late 1993 which included an East Coast Buffer concept. The East Coast Buffer identified by the Science Sub Group included the area in which the Property is located.

    
    

23. The Science Sub Group relied upon data obtained from the SFWMD and various computer models developed by the SFWMD, and SFWMD personnel contributed to the preparation of the report.

    
    

24. The East Coast Buffer concept generally includes a series of interconnected water flow-ways along the eastern edge of the water conservation areas necessary to restore the Everglades.

    
    

25. The federal government has also instituted a study known as the "Central & South Florida Project: Comprehensive Review Study" (hereinafter referred to as the "Restudy"). The United States Corps of Engineers is the lead agency of the Restudy.

    
    

26. The first phase of the Restudy's efforts has resulted in a "Reconnaissance Report", also known as the "Recon Study". The second phase of the Restudy's efforts will be the feasibility phase. The feasibility phase will begin in the summer of 1995 and will be completed several years later.

27. The purpose of the Restudy is to bring together the interested federal agencies to review the current management of the Everglades and identify strategies for altering management practices and systems to improve the Everglades.

    
    

28. The Recon Study was completed in late 1994. It describes various conceptual strategies for restoring the Everglades. The determination of the feasibility of the strategies has not, however, been started, much less completed. Therefore, although the East Coast Buffer concept is considered in the Recon Study, the actual identification of the area which will constitute the Buffer has not been identified. Nor has the area which should constitute the East Coast Buffer been recommended in the Recon Study.

    
    

29. The Recon Study identifies problems and opportunities, formulates alternative plans, evaluates conceptual alternative plans and recommends further study. The Recon Study is advisory. It does not identify, recommend or implement a plan of action.

    
    

30. The Coalition presented evidence concerning the ongoing analysis of Everglades restoration efforts. That evidence proved that the Property is located within a very large area, which completely surrounds the Everglades, which is being considered as part of the Everglades restoration effort because of the impact of this large area on restoration efforts.

    
    

31. The evidence presented by the Coalition, however, failed to prove that the Property has been, or will be, determined to be essential or even necessary for future Everglades restoration efforts. At the time of the approval of the Amendment and, even at the time of the final hearing of this case, no such determination had been made. Nor had any determination been made as to what will be necessary for the restoration of the Everglades or whether decisions will be made to carry out the necessary restoration efforts.

    
    

32. As recognized by the Coalition in its proposed order:

    
    

    52. The study necessary to make [a determination of the water levels needed] for the areas which are implicated by this amendment will be done in the next two years or three years.

    * * *

    55. There is no way of telling, based on the data and analysis available at this point, how much water will be necessary in order to fully restore the Everglades. . . .

    
    

    Coalition proposed findings of fact 52 and 55.

    
    

33. The Coalition also recognized the following:

    
    

    The Reconnaissance study has not reached the point where conclusions can be drawn about parcel specific uses. The next step is the feasibility planning phase, which is a much more detailed phase which will run for several years. . . .

    Coalition proposed finding of fact 107.

    
    

34. Instead of attempting to prove that the data and analysis at the time of adoption of the Amendment indicated that development of the Property authorized by the Amendment would be detrimental to restoration efforts, the Coalition attempted to prove that development of the Property should be delayed until data and analysis is available indicating conclusively what the impact of development of the Property will be on restoration efforts. The Act does not require such delay.

    
    

35. In addition to failing to prove what the impact of development of the Property will be on restoration efforts, the evidence presented by the Coalition also failed to prove that the conclusions reached by the Science Sub Group and the Restudy will even be implemented.

    
    

36. The evidence presented by the Coalition failed to prove that the conclusions of the SFWMD with regard to the impact of the Amendment are not supported by data and analysis or were not arrived at by professionally acceptable methods.

    
    

37. While the evidence proved that there will be some reduction in the amount of groundwater recharge function and seepage control function as a result of the Amendment, the evidence failed to prove what ultimate impact the reductions in recharge and seepage control will be or that the SFWMD's conclusions are not reasonable.

    
    

38. While the Coalition proved that the SFWMD's conclusions were not based upon a consideration of what should be done to restore the Everglades, the evidence failed to prove that the information available was sufficiently conclusive that the SFWMD should have objected to the Amendment.

    
    

39. The data and analysis relied upon by the County in approving the Amendment was collected and applied in a professionally acceptable manner. None of those agencies charged with responsibility to review the Amendment raised objections to its approval.

    
    

40. The evidence failed to prove that the state of the data and analysis available to the County from the Science Sub Group and the Restudy or any other source concerning the area referred to as the East Coast Buffer and the Property is such that it proved that the data that was relied by the County upon was inadequate.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

41. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

    1. Burden of Proof.

       
       

42. The burden of proof absent a statutory directive to the contrary is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1st DCA

    1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977).

    
    

43. The burden of proof in this proceeding was on the Coalition, pursuant to Section 163.3184(9)(a), Florida Statutes, to prove to the exclusion of fair debate that the Amendment was "in compliance."

    
    

44. "The fairly debatable test asks whether reasonable minds could differ as to the outcome of a hearing." Norwood-Norland Homeowner's Association v. Dade County, 511 So.2d 1009, 1012, (Fla. 3d DCA 1987).

    
    

    1. Standing.

       
       

45. The evidence in this proceeding proved that the Coalition and Intervenors are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes.

    
    

46. The Coalition operates and has its offices in the County. The Coalition also made oral and written comments concerning the Amendment.

    
    

47. Intervenors own property within the County and made oral and written comments concerning the Amendment.

    
    

    1. The Amendment is "In Compliance".

    
    

48. Section 163.3177(8), Florida Statutes, requires that all plan elements "shall be based upon data appropriate to the element involved."

    
    

49. Rule 9J-5.005(2)(a), Florida Administrative Code, provides in pertinent part:

    
    

    1. All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents shall be based upon relevant and appropriate data. Data or summaries thereof shall not be subject to the compliance review process. However, the Department will review each comprehensive plan for the purpose

       of determining whether the plan is based on the data described in this Chapter and whether the

       data were collected and applied in a professionally acceptable manner. . . .

       
       

50. Rule 9J-5.005(2)(c), Florida Administrative Code, describes the required sources of data:

    
    

    (c) Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government,

    appropriate methodologies shall be clearly described

    or referenced and shall meet professional accepted standards for such methodologies.

    
    

51. The evidence in this case proved that the data and analysis concerning the need for dwelling units relied upon the County and the Department came from "professionally accepted existing sources" and was "collected and applied in a professionally acceptable manner."

    
    

52. Rule 9J-5.006(2), Florida Administrative Code, sets out the following pertinent land use analysis requirements:

    
    

    Land Use Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to Subsection 9J-5.005(2).

    * * *

    1. An analysis of the amounDt of land needed

       to accommodate the projected population, including:

       1. The categories of land use and their densities or intensities of use,

       2. The estimated gross acreage needed by category, and

       3. A description of the methodology used;

    * * *

    
    

53. The County complied with the foregoing requirements concerning its analysis of the Amendment and its impact on residential land use needs. The Coalition failed to prove that the County failed to follow the foregoing requirements.

    
    

54. The analysis performed by the Coalition's witness did not comply with the requirements of Rule 9J-5.006, Florida Administrative Code.

    
    

55. The evidence in this case proved that the data and analysis concerning the impact of the Amendment on the East Coast Buffer relied upon the County and the Department came from "professionally accepted existing sources" and was "collected and applied in a professionally acceptable manner."

    
    

56. The evidence presented by the Coalition only proved that the data and analysis concerning what will be required to restore the Everglades and what steps to restore the Everglades will ultimately be agreed upon has not yet been decided. The evidence also proved that it will be several years before these decisions are made.

    
    

57. The evidence also proved that the ultimate decisions concerning the restoration of the Everglades, when they are ultimately made, may or may not be impacted by development on the Property.

    
    

58. Because of the uncertainty, the Coalition would like the County to not attempt any further action with regard to the Property until the decisions concerning the restoration of the Everglades are made.

    
    

59. The Coalition has cited no authority, and the undersigned has not been able to find any authority, that would support a conclusion, where there is uncertainty concerning future decisions which may or may not impact a proposed development, that a local government is required to take no action to modify its

    growth management plan. The Act does not require such delay in the face of the data and analysis available to the County.

    
    

60. The best conclusive data and analysis available to the County supported the conclusion of the County that the proposed development of the Property should be approved. The contrary data failed to indicate that the issues involved with this Amendment had been inadequately analyized when adopting the Amendment.

    
    

61. The evidence also failed to prove that the Amendment causes the FLUM to be internally inconsistent with any other provision of the plan.

    
    

62. Finally, the evidence failed to prove that the Amendment is inconsistent with the state comprehensive plan or the regional plan applicable to the County.

    
    

63. Based upon the foregoing, it is concluded that the Coalition has failed to prove that the County's decision to amend its Plan was not fairly debatable.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department dismissing

finding the Amendment "in compliance" and dismissing the petition in this case.

DONE AND ENTERED this 19th day of July, 1995, in Tallahassee Florida.

LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1995.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Coalition's Proposed Findings of Fact

1. Accepted in 1-2.

2. Accepted in 2.

3-4 Accepted in 3.

1. Accepted in 4.

2. Accepted in 5

3. Accepted in 4.

4. Accepted in 5.

5. Accepted in 4-6.

6. Accepted in 5-6.

7. Accepted in 6.

8. Hereby accepted.

9. Accepted in 12

14-15 Not relevant.

16-18 Not relevant. See 81-84.

19-25 Not relevant and not supported by the weight of the evidence.

See 81-84.

1. Accepted in 29.

2. Not supported by the weight of the evidence.

3. Hereby accepted.

4. Accepted in 26 and hereby accepted. 30-31 See 24.

1. Accepted in 26.

2. Accepted in 36 and 62.

3. Accepted in 62. 35-41 Hereby accepted.

42-48 These proposed findings are generally correct. They are not, however, relevant to the ultimate determination in this case.

49-50 Too speculative. Not supported by the weight of the evidence.

1. The first sentence is hereby accepted. The last sentence is not relevant.

2. See 96.

3. Not supported by the weight of the evidence and not relevant.

4. Not supported by the weight of the evidence.

5. The first sentence is accepted in 96. The last sentence is not relevant.

6. Hereby accepted.

57-63 Too speculative. Not supported by the weight of the evidence. 64-65 Not relevant.

1. Hereby accepted.

2. Accepted in 89 and 91 and hereby accepted.

3. Accepted in 90 and 92.

4. See 86 and 92.

5. Hereby accepted.

6. Although generally true, the evidence failed to prove that this finding specifically applies to the Property.

7. Except for the first sentence, not supported by the weight of the evidence.

8. Hereby accepted.

9. Accepted in 31-33.

10. Not supported by the weight of the evidence.

76-87 Although generally correct, these findings were too broad and the evidence failed to prove that they specifically apply to the Property.

88-90 Although generally correct, these proposed findings are not relevant.

1. Not supported by the weight of the evidence.

2. Although generally correct, these proposed findings are not relevant.

3. Too speculative. Not supported by the weight of the evidence. 94-97 Although generally correct, these proposed findings are not

relevant.

98 Too speculative. Not supported by the weight of the evidence.

99-100 Not relevant.

1. Hereby accepted.

2. Not supported by the weight of the evidence.

3. Although generally correct, these proposed findings are not relevant.

104-105 Not relevant.

1. Too speculative. Not supported by the weight of the evidence.

2. Accepted in 97.

3. Accepted in 90.

4. Too speculative. Not supported by the weight of the evidence.

5. Not supported by the weight of the evidence.

111-114 Too speculative. Not supported by the weight of the evidence.

The County's Proposed Findings of Fact

47 Accepted in 72.

48-49 Hereby accepted.

1. Accepted in 73-77 and hereby accepted.

2. Accepted in 76-77.

3. Accepted in 38.

4. Accepted in 79-80

5. Accepted 58 and 62. 55-57 Hereby accepted.

1. Accepted in 82.

2. Hereby accepted. 60-61 Accepted in 81-84.

62 Hereby accepted.

63-65 Accepted in 46 and hereby accepted.

1. Accepted in 43 and 45.

2. Accepted in 88.

3. Accepted in 89-90.

69-70 Accepted in 85-86.

71 Accepted in 90 and 92-93. 72-77 Hereby accepted.

1. Accepted in 32 and 44.

2. Hereby accepted.

3. None proposed.

4. Accepted in 33.

5. Hereby accepted.

6. Accepted in 50.

7. Accepted in 51.

8. Accepted in 49 and hereby accepted.

9. Hereby accepted.

87-88 Accepted in 52.

89-90 Hereby accepted.

1. Accepted in 53 and 58 and hereby accepted.

2. Accepted in 54.

3. Accepted in 56.

4. Accepted in 58.

95-96 Accepted in 59.

1. Accepted in 60.

2. Accepted in 61.

The Department's and Intervenors' Proposed Findings of Fact

1. Accepted in 1.

2. Accepted in 7.

3. Accepted in 8.

4. Accepted in 11.

5. Hereby accepted.

6. Accepted in 12.

7. Accepted in 13.

8. Accepted in 14.

9. Accepted in 15.

10. Accepted in 9-10.

11. Accepted in 18.

12. Accepted in 16.

13. Accepted in 17.

14. Accepted in 61.

15. Accepted in 11 and 19-20.

16. Accepted in 20.

17. Accepted in 23.

18. Accepted in 24-25.

19. Accepted in 26.

20. Accepted in 27.

21. Accepted in 36-38.

22-37 Hereby accepted.

1. Accepted in 43.

2. Accepted in 88.

3. Hereby accepted.

4. Accepted in 31.

42-43 Accepted in 44.

1. Accepted in 43 and hereby accepted.

2. Hereby accepted.

3. Accepted in 42.

4. Accepted in 42 and 46.

5. Accepted in 46 and hereby accepted.

6. Accepted in 46.

7. Accepted in 50.

8. Accepted in 46.

52-53 Accepted in 48.

1. Accepted 49.

2. Accepted in 49, 52 and 54.

3. Accepted in 50.

4. Accepted in 51.

5. Accepted in 54 and 57. 59-60 Accepted 54.

61-63 Accepted in 54 and hereby accepted.

1. Accepted in 55.

2. Accepted in 56-57. 66-67 Accepted in 58.

68-70 Accepted in 59.

1. Accepted in 64.

2. Accepted in 58 and 62.

3. Accepted in 60 and 62.

4. Accepted in 63.

5. Accepted in 67.

6. Hereby accepted.

7. Accepted in 67 and hereby accepted.

8. Accepted in 37 and hereby accepted.

9. Not relevant.

10. Accepted in 86.

11. Hereby accepted. 82-83 Accepted in 86.

1. Accepted in 87.

2. Accepted in 89 and hereby accepted.

3. Accepted in 90.

4. Accepted in 90 and 92-93.

5. Accepted in 93. 89-90 Hereby accepted.

1. Not supported by the weight of the evidence.

2. Accepted in 72-78.

3. Accepted in 69-71.

4. Accepted in 70.

5. Accepted in 73-74 and hereby accepted.

6. Accepted in 75.

7. Accepted in 76.

8. Accepted in 77.

9. Accepted in 78.

10. Accepted in 79-80. 101-102 Accepted in 82.

1. Accepted in 83.

2. Accepted in 83-84.

3. Accepted in 81 and 84.

COPIES FURNISHED:

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399

Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399

Brion Blackwelder, Esquire Jack Milbery, Esquire

8751 West Broward Boulevard, #206

Plantation, Florida 33324

Sherry A. Spiers Assistant General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Tracy Lautenschlager, Esquire Broward County Attorney's Office

115 South Andrews Avenue Suite 423

Fort Lauderdale, Florida 33301

Glenn Smith, Esquire Michael A. Cohn, Esquire

Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A.

200 East Broward Boulevard Post Office Box 1900

Fort Lauderdale, Florida 33302

Honorable Gerald F. Thompson Chairman, Broward County

Board of County Commissioners Governmental Center

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-001464GM

Orders for Case No: 95-001464GM