STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENVIRONMENTAL CONFEDERATION ) OF SOUTHWEST FLORIDA, INC., ) and GARY BEARDSLEY, )

)

Petitioners, )

)

vs. )

)

DEPARTMENT OF COMMUNITY ) AFFAIRS and COLLIER COUNTY, )

)

Respondents, ) Case No. 96-4752GM

)

and )

) BARRON COLLIER PARTNERSHIP; ) COLLIER ENTERPRISES; ) RUSSELL A. and ALIESE P. ) PRIDDY; JOHN E. PRICE, JR.; ) and JAMES E. WILLIAMS, JR.; )

)

Intervenors. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Naples, Florida, on March 28 and 29, 1997.

APPEARANCES

For Petitioners: Attorney Thomas W. Reese

2951 61st Avenue South

St. Petersburg, Florida 33712 For Respondent Department of Community Affairs:

Shaw P. Stiller

Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

For Respondent Collier County:

Ramiro Manalich

Chief Assistant County Attorney Marjorie M. Student

Assistant County Attorney Collier County Attorney Office

8th Floor, Administration Building 3301 Tamiami Trail East

Naples, Florida 34112-4902

For Intervenors: C. Laurence Keesey

Young, van Assenderp & Varnadoe, P.A. SunTrust Building

801 Laurel Oak Drive, Suite 300

Naples, Florida 34018 STATEMENT OF THE ISSUE

The issue is whether proposed amendments to the Collier County comprehensive plan are in compliance with the criteria of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.

PRELIMINARY STATEMENT

By Petition for Hearing served September 30, 1996, Petitioners alleged that the proposed plan amendments adopted by Respondent Collier County in Ordinance No. 96-41 are not in compliance with various criteria of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.

The petition raises four issues: whether the proposed plan amendments are supported by appropriate data and analysis; whether Chapter 163, Part II, requires Collier County to regulate agricultural activities; whether the plan, as amended, would deal with agriculture as a land use, as required by Section 163.3177(6) and Rules 9J-5.006, 9J-5.012, 9J-5.013, and 9J-5.014;

and whether the plan, as amended, would not be in compliance for the reasons stated in the Objections, Recommendations, and Comments issued by Respondent Department of Community Affairs.

By Answer and Affirmative Defenses served October 21, 1996, Respondent Collier County asserted that the proposed plan amendments would merely reinstate exemptions provided by Rule 28- 25.004, Florida Administrative Code, for agricultural activities in the Big Cypress Area of Critical State Concern and that Rule 28-25.014 requires comprehensive plans affecting the critical area to support achievement of the Big Cypress Area rules.

By Petition to Intervene served November 8, 1996, Intervenors sought leave to intervene to defend the proposed plan amendments. The administrative law judge granted the Petition to Intervene by order entered February 11, 1997.

At the hearing, Petitioners called six witnesses and offered into evidence eight exhibits. Respondent Collier County called two witnesses and offered into evidence eight exhibits.

Respondent Department of Community Affairs called one witness and offered into evidence one exhibit. Intervenors called three witnesses and offered into evidence four exhibits. The parties jointly offered three exhibits. All exhibits were admitted.

The court reporter filed the transcript on May 15, 1997.

FINDINGS OF FACT

1. Background

   
   

   1. Located in southwest Florida, south of the Caloosahatchee River and southeast of Lake Okeechobee, Collier

      County comprises about 2000 square miles or 1.28 million acres. The County borders the Gulf of Mexico on the west, Lee and Hendry counties on the north, Broward and Dade counties on the east, and Monroe County and the Gulf of Mexico on the south.

   2. Contiguous tracts of government-owned land occupy much of the County, especially the southeast portion of the County. These tracts include the Big Cypress National Preserve, Everglades National Park, Fakahatchee Strand State Preserve, Ten Thousand Islands Aquatic Preserve, Collier Seminole State Park, and, at the northwest corner of these public holdings, the Florida Panther National Wildlife Refuge.

   3. The area that is the subject of the present case is the Big Cypress Area of Critical State Concern (Big Cypress). The Big Cypress contains about 931,000 acres, of which about 778,000 are in Collier County. This represents about 60 percent of the County. Encompassing nearly all of the government-owned land identified in the preceding paragraph, as well as smaller areas of privately owned land, the Big Cypress will eventually extend to about 92 percent of the County.

   4. On July 23, 1996, the Collier County Board of County Commissioners adopted Ordinance No. 96-41. The ordinance would amend the future land use element (FLUE) of the comprehensive plan (as amended, the Plan) of Respondent Collier County (County).

   5. Petitioner Gary L. Beardsley (Beardsley) is an environmental consultant who has worked in Collier County since

      1984. He appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments.

   6. Petitioner Environmental Confederation of Southwest Florida, Inc. (ECOSWF) is a confederation of about 50 organizations in Collier, Lee, Hendry, Charlotte, Sarasota, and DeSoto counties. Through its representative, Beardsley, ECOSWF appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments.

   7. Intervenors Barron Collier Partnership and Collier Enterprises are general partnerships. Intervenors Russell A. and Aliese Priddy; John E. Price, Jr.; and James E. Williams, Jr. are residents of, and maintain their primary places of business in, Collier County. Intervenors own over 56,000 acres in the Big Cypress. Their land is zoned agricultural, and they engage in active agricultural activities on much of this land.

   8. Barbara Cowley, as representative of Intervenors, submitted comments to the Collier County Board of County Commissioners while the Board was considering the plan amendments.

2. Plan Provisions

   
   

   1. The challenged plan amendments would reinstate three agricultural exemptions from land-use restrictions otherwise imposed by the Plan upon agricultural activities in the Big Cypress. The land-use restrictions presently in effect limit

      site alterations, drainage, and structural installations in the Big Cypress with no exemption for agricultural activities.

   2. The Plan originally exempted agricultural activities from the prohibitions against site alterations, drainage, and structure installations in the Big Cypress. In 1991, when adopting its land development regulations, Collier County amended the Plan to eliminate these agricultural exemptions in the Big Cypress. Adopting a recommendation of a citizen advisory committee, Collier County reasoned that “agricultural uses are intensive uses which alter the land significantly and should be regulated with regard to the site alteration, drainage, and structure installation requirements as other land uses are within the Critical Area.”

   3. Five years later, Collier County decided to readopt the original agricultural exemptions in the land development regulations and the Plan. A fourth plan amendment in the adoption ordinance affects land uses outside the Big Cypress; it is restated below, but Petitioners have challenged only the three amendments reinstating the original agricultural exemptions.

   4. The proposed plan amendments would change the FLUE. Following the FLUE goals, objectives, and policies, the FLUE provides detailed explanations of the FLUE designations. Although not in the form of goals, objectives, and policies, these explanations are operative provisions of the Plan.

   5. The proposed plan amendments would revise the explanatory section entitled, “Area of Critical State Concern Overlay” (Overlay). The Overlay applies to land uses in the Big Cypress.

   6. As originally adopted, the Plan required that all “development orders” comply with Chapter 27F-3, Florida Administrative Code, which regulated activities in the Big Cypress. (Chapter 28-25 has since superseded Chapter 27F-3.) As amended in 1993, the Plan now provides that development orders in the Big Cypress must comply with the rules of Chapter 27F-3 or the Overlay provisions, whichever are more restrictive.

   7. Overlay Section A addresses site alterations, Overlay Section B addresses drainage, and Overlay Section D addresses structure installations.

   8. Overlay Section A.1 provides:

      
      

      Site alterations shall be limited to ten percent of the total site size, and installation of nonpermeable surfaces shall not exceed 50 percent of any such area.

      However, a minimum of 2,500 square feet may be altered on any permitted site.

      
      

   9. The original agricultural exemption for site alterations was contained in Overlay Section A.8, which provided: “This rule [i.e., the Overlay provisions governing site alterations] shall not apply to site alterations undertaken in connection with the agricultural use of land or for the conversion of land to agricultural uses.” The proposed plan amendments would readopt this original language.

   10. The plan amendment not challenged by Petitioners eliminates the percentage limitation for site alterations for conservation purposes. The unchallenged plan amendment states (new language underlined and repealed language stricken through):

       For land zoned agricultural Estates, outside of the Area of Critical State Concern, and identified as Southern Golden Gate Estates in Goal 2 of the Golden Gate Area Master Plan, that is engaged in or is proposing bona fide agricultural use(s), site alteration percentage limits may be adjusted for site alteration activities designed for conservation and/or environmental purposes as set forth in an environmental impact statement approved by the Board of County Commissions. Such site alteration activities include: (i) prescribed fires and associated firebreaks as approved by the Florida department of forestry; (ii) removal and control of listed exotic plant species; (iii) native habitat occurring plant species; (v) [sic] restoration of historical hydroperiods; and (vi) other activities designed for conservation and environmental purposes reviewed on a case by case basis.

   11. Overlay Section B addresses drainage in the Big Cypress. Section B.2 requires new drainage facilities to release water

       in a manner approximating the natural local surface flow regime . . . either on-site or to a natural retention or filtration and flow area. New drainage facilities shall also maintain a groundwater level sufficient to protect wetland vegetation through the use of weirs or performance equivalent structures or systems. Said facilities shall not retain, divert, or otherwise block or channel the naturally occurring flows in a strand, slough, or estuarine area.

   12. Originally, Section B.4 provided: “This rule shall not apply to drainage facilities modified or constructed in order to

       use land for agricultural purposes or to convert land to such use.” The proposed plan amendments would readopt this original language.

   13. Overlay Section D addresses the installation of structures in the Big Cypress. Section D.1 requires that the “[p]lacement of structures shall be accomplished in a manner that will not adversely affect surface water flow or tidal action.”

   14. Originally, Section D.3 provided: “This rule shall not apply to structures used or intended for use in connection with the agricultural use of the land.” The proposed plan amendments would readopt this original language.

   15. Goal 1 of the Conservation and Coastal Management Element (Conservation) states: “The County shall continue to plan for the protection, conservation, management and appropriate use of its natural resources.”

   16. Conservation Objective 1.1 states:

       
       

       By August 1, 1994, the County will complete the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. . . .

   17. The FLUE also contains an overlay for areas of environmental concern. However, the only significance of this overlay is that the County promises later to adopt land development regulations governing development in such areas. As

       a Plan provision, this overlay does not directly protect any natural resources.

   18. The Plan contains definitions

       
       

       to clarify terms used in the Collier County Comprehensive Plan and not to establish or limit regulatory authority of other agencies or programs. Some definitions have been changed from those found in Chapter 163, Florida Statutes to reflect local usage.

       
       

   19. Paragraph 64 of the definitions defines “development” as the “act, process, or result of placing buildings and/or structures on a lot or parcel of land or clearing and/or filling of land.”

   20. A “note” at the end of the explains the meaning of “properly,” “appropriate(ly),” and “effective(ly).” The note explains that these words are used

       to allow the Board of County Commissioners flexibility in its decision making process for the issuance of development orders . . ..

       Because several areas of this plan identify future studies and/or programs, flexibility was reserved by the Board of County Commissioners until these studies and programs have been completed and specific statements could be developed for inclusion in the Growth Management Plan through the amendment process.

3. DCA Review of the Proposed Plan Amendments

   
   

   1. The County transmitted the proposed plan amendments to Respondent Department of Community Affairs (DCA) to determine whether they are in compliance, as required by Section 163.3184(1)(b).

   2. By Objections, Recommendations, and Comments (ORC) issued February 9, 1996, DCA announced objections that, if not addressed, could have provided the basis for a determination that the plan amendments were not in compliance.

   3. The ORC contends that the plan amendments are not supported by data and analysis. The ORC states that Collier County did not provide any data and analysis to “justify reinstatement of the agricultural exemptions.” The ORC recommends that the County describe the conditions that have “occurred or changed to warrant reinstatement of the agricultural exemptions” and “consider and assess the practicality of allowing less than 100 percent clearing in areas where significant natural resources occur or could be adversely affected.” The ORC notes that Collier County provided no analysis of the environmental impacts that could result from reinstating the agricultural exemptions.

   4. The ORC contends that the plan amendments are internally inconsistent. The ORC explains that reinstatement of the agricultural exemptions creates a “potential for loss (through clearing activities) of natural resources such as wetlands and listed species['] habitats.” The ORC questions the consistency of the reinstatement of the agricultural exemptions, with the attendant loss of natural resources, with Conservation Goal 1 and Objective 1.1. The ORC suggests that the County

      consider additional protection from agricultural uses for areas within the Big Cypress that contain “significant natural resource areas.”

   5. The ORC contends that the plan amendments are inconsistent with Goal 8 and Policy 8.10 and Goal 10 and Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan, as set forth at Section 187.201, Florida Statutes.

   6. The ORC contains the comments of various state and regional agencies, including the Southwest Regional Planning Council, Department of Environmental Protection (DEP), and South Florida Water Management District (SFWMD).

   7. The Southwest Regional Planning Council determined that the plan amendments were consistent with the Strategic Regional Policy Plan of the Southwest Regional Planning Council and recommended that Collier County, SFWMD, or another entity monitor the impacts in the Big Cypress of the agricultural activities that would be permitted by the amendments.

   8. DEP noted that Collier County had not analyzed the impact of the readoption of the agricultural exemptions on lands designated for agricultural use. DEP mentioned that agriculturally designated lands may include sensitive habitats used by threatened or endangered species and thus “deserve a special classification.” DEP also linked agricultural practices in the area to problems in water quality and quantity, as well as disturbed hydroperiods. For these reasons, DEP suggested that the County designate appropriate lands as Conservation and enlist

      DEP’s assistance in forming stewardship alliances with landowners in the Big Cypress to preserve these natural resources.

   9. SWFWMD commented that it does not exempt most agricultural activities from its Environmental Resource Permitting requirements. But SWFWMD added that the “site alteration and drainage regulations of the . . . Overlay represent a valuable addition.”

   10. The County did not revise the proposed plan amendments after receiving the ORC. Explaining the County’s position, a staff memorandum dated March 4, 1996, asserts that the proposed amendments are supported by data and analysis because the amendments achieve consistency with Chapter 28-25, do not prevent the County from adopting land development regulations to protect the affected natural resources, and affect a small amount of undeveloped land (14 of 81 square miles) as compared to the large amount of land owned or about to be owned by public entities.

   11. The March 4, 1996, memorandum disclaims any inconsistency between the proposed plan amendments and Conservation Goal 1 and Objective 1.1. In support of this claim the memorandum cites Policy 1.1.2, which calls for the adoption of land development regulations incorporating the Conservation goals, objectives, and policies; Policy 1.1.5, which is to avoid duplication of effort with private and public agencies; and Policy 1.1.6, which is to balance the benefits and costs of the County conservation program between the public and private sectors.

   12. On September 9, 1996, DCA published in the Naples Daily News its Notice of Intent to find the proposed plan amendments in compliance.

   13. On September 30, 1996, Petitioners filed their petition challenging the proposed plan amendments.

4. Data and Analysis

   
   

   1. In its proposed recommended order, Collier County cites as supporting data and analysis the same items asserted in the March 4, 1996, memorandum. In isolation, these items offer little, if any, support for the readoption of the agricultural exemptions. In the context of the readily available data and analysis, the data and analysis on which the County relies provide no support for the blanket reinstatement of the agricultural exemptions proposed by the plan amendments.

   2. The County argues that the reinstatement of the agricultural exemptions is supported by the presence of an identical exemption in Chapter 28-25 for agricultural activities in the Big Cypress. This argument treats the rules protecting areas of critical state concern as a “safe harbor” so that, if incorporated into a local government’s comprehensive plan, they assure a finding of supporting data and analysis. The effect of this argument is that comprehensive plans would provide greater protection from agricultural activities to natural resources outside areas of critical state concern than they would provide the same natural resources in areas of critical state concern.

   3. The County implies that the proposed plan amendments would have little effect because relatively little land of the affected land remains undeveloped, most of the land is in public ownership, and much of the remainder of the land will be in public ownership. Although the percentage of such undeveloped, privately owned land may be low, the actual area remains significant.

   4. Also, proposed agricultural exemptions apply to land already in agricultural use, not just undeveloped land proposed for conversion to agricultural use. Each proposed exemption applies to activities “to use land for agricultural purposes or to convert land for such use.” Obviously, adding privately owned agricultural land to privately owned undeveloped land means that the proposed exemptions would affect even more land.

   5. Lastly, the County, in effect, argues for a relaxation of land-use restrictions on land just prior to its public acquisition. Such an action would jeopardize the purpose of what has been an ambitious land-acquisition program to protect the important natural resources of this area.

   6. The County argues that its land development regulations protect any natural resources left vulnerable by the reinstatement of the agricultural exemptions. As compared to plan provisions, land development regulations are easily repealed and do not generally, in the best of circumstances, supply much support, as data or analysis, for plan provisions. This case does not present the best of circumstances given the valuable and

      extensive natural resources and the reliance on land development’s regulations to the exclusion of the Plan provisions that the County effectively proposes to repeal with the reinstatement of the agricultural exemptions.

   7. The County argues that other permitting regimes govern agricultural uses in the Big Cypress. Most notably, the area of critical state concern program obviously does not. The vigorous participation of the Intervenors and the comments of the SFWMD suggest that the failure to reinstate the three agricultural exemptions in the Plan would meaningfully restrict agricultural activities. In any event, authority dictating avoidance of duplicative permitting regimes was not intended to prohibit the County from strengthening Plan protections for the natural resources found in the Big Cypress.

   8. For the reasons stated in the preceding paragraphs, the County’s data and analysis do not support the proposed plan amendments. In fact, the proposed plan amendments are repudiated by considerable data and analysis that the County has ignored. These data and analysis have emerged since the adoption of the Plan and 1993 plan amendments, but prior to the adoption of the proposed plan amendments.

   9. Two sources of these data and analysis are the Florida Panther: Habitat Preservation Plan—South Florida Population, which was issued in November 1993 by individuals employed by the

      U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Florida Department of Environmental Protection, and

      National Park Service for the Florida Panther Interagency Committee (Habitat Preservation Plan), and Closing the Gaps in Florida’s Wildlife Habitat Conservation System, which was issued in 1994 by individuals employed by the Florida Game and Fresh Water Fish Commission (Closing the Gaps).

   10. The Habitat Preservation Plan notes that the U.S. Fish and Wildlife Service designated the Florida panther as a federal endangered species 30 years ago. Fourteen years later, the U.S. Fish and Wildlife Service approved a recovery plan for the Florida panther. The Service revised the plan six years later in 1987.

   11. The purpose of the 1987 recovery plan is to develop three viable, self-sustaining populations within the historic range of the Florida panther. This range extended through the entire southeast, not just Florida. Recovery efforts focus on three elements: stabilizing the south Florida population, preserving and managing genetic resources, and reestablishing at least two more populations elsewhere. The Habitat Preservation Plan warns that these “three elements must proceed simultaneously if recovery of the Florida panther is to be successful.” Habitat Preservation Plan at page 1.

   12. Focusing on the first element, the Habitat Preservation Plan identifies “actions that will assure the long-term preservation of habitats considered essential for maintaining a self-sustaining population of panthers in south Florida” (emphasis deleted). Id. at page 2.

   13. The Habitat Preservation Plan reports that a self- sustaining population requires at least 50 adult panthers. Id. The Habitat Preservation Plan estimates that the south Florida panther population appears stable at 30-50 adult animals. Id. at page 1. However, the plan, at page 2, cautions:

       Important panther habitat is being lost daily. Urban Development and agricultural expansion in occupied panther range without consideration for habitat needs of the panther are expected to accelerate as Florida’s [human] population increases. Development activities could reduce the available habitat to a level below the minimum threshold essential for a self-sustaining panther population.

   14. The Habitat Preservation Plan states that Collier is one of only four counties with a documented reproducing panther population—the other counties are Lee, Dade, and Hendry. Adult males require 200 square miles with little overlap with other males. Adult females require 75 square miles with some overlap with other panthers.

   15. Florida panther prefer white-tailed deer and feral hogs, but will also eat raccoons, armadillos, rabbits, birds, and alligators. According to the Habitat Preservation Plan, an adult panther annually eats the equivalent of 30-50 deer.

   16. The Habitat Preservation Plan states that “[l]and management plays an important role in panther habitat preservation.” Id. at page 5. According to the plan, prescribed burning, which facilitates the use of livestock range, also benefits the white-tailed deer. The plan warns that panther

       habitat is threatened by the invasion of nuisance exotics, such as melaleuca, Brazilian pepper, and Australian pine.

   17. The Habitat Preservation Plan asserts that the preferred panther habitats are hardwood hammocks and pine flatwoods, which are upland habitats in south Florida. Private lands in Collier County typically feature improved and native rangeland, wet and dry prairies interspersed with cabbage palm, and pine and oak forests—habitat that the panther share with other endangered or threatened species, such as the Florida sandhill crane, Audubon’s crested caracara, Florida grasshopper sparrow, and the burrowing owl.

   18. The Habitat Preservation Plan suggests that South Florida may be near carrying capacity for panthers, so that further habitat loss means the loss of panthers. Nor are the existing publicly owned lands in south Florida sufficient; they can probably support only 9-22 of the estimated 30-50 panthers in the region. Id. at page 9.

   19. The threat to panther habitat posed by agricultural uses depends entirely on the type of agricultural use for which development is proposed. The Habitat Preservation Plan acknowledges that native range and sustained yield forestry retain native habitat and “can be compatible with panther use.” Id. at page 16. Other uses, such as citrus groves, vegetable farms, and improved pasture, eliminate native habitat.

   20. However, the plan describes an ongoing evaluation of the possibility that fertilization of livestock range may boost

       the nutrition of deer, which would also assist the panther.

       
       

       Also, the plan acknowledges the importance of the configuration and scale of agricultural development. Panthers may persist in a mosaic of native and nonnative habitats where the

       size and configuration of an improved pasture, vegetable field or citrus grove and the composition of adjoining landscapes determine whether or not the mosaic provides suitable panther habitat. Agricultural lands interspersed with native habitats may benefit the panther’s primary prey, deer and feral hogs.

       Id. at page 16.

       
       

   21. The Habitat Preservation Plan warns that citrus development in particular may displace panther habitat in southwest Florida at a fast rate as grove owners, using new technologies, expand citrus into the pine flatwoods of southwest Florida. But the plan suggests that small citrus groves dispersed carefully among preserved panther habitat might provide corridors and cover for the panther.

   22. The Habitat Preservation Plan suggests that south Florida livestock range is divided equally between native range and improved pasture. Suggesting that even improved, overseeded pasture may assist the panther by providing additional food for the white-tailed deer, the plan focuses on the “size and configuration of the pasture and the interspersion and connectivity of native cover adjacent to the pasture.” Id. at page 20.

   23. Among methods of habitat preservation, the Habitat Preservation Plan lists numerous approaches that do not require acquisition of the fee simple. These approaches include incentives in landowner agreements and conservation easements to encourage the perpetuation of native range and sustained-yield forestry as opposed to other, more habitat-disruptive agricultural uses.

   24. The Habitat Preservation Plan describes a number of laws that assist in the preservation of panther habitat. Although not mentioning the state laws governing development in areas of critical state concern, such as Big Cypress, the plan

       discusses Chapter 163, Part II, Florida Statutes, and the role of the comprehensive plans of local governments, such as Collier County, whose jurisdictions encompass prime panther habitat.

   25. Using available data, the Habitat Preservation Plan identifies habitats suitable for preservation as priority one or priority two. Priority one habitats, which include much of the still-forested area affected by the proposed plan amendments, comprise the “lands most frequently used by the panther and/or lands of high quality native habitat suitable for the

       panther . . ..” Id. at page 34.

       
       

   26. The first of several recommendations contained in the Habitat Preservation Plan is to:

       Develop site-specific habitat preservation strategies for [priority one] lands considered essential to maintaining the Florida panther population south of the Caloosahatchee River at its present level. Strategies should emphasize preservation of

       suitable panther habitat on private lands by methods that retain private ownership of those lands to the extent possible, and implement management practices on public lands that, based on existing data, would be expected to result in improved habitat conditions for the panther.

       
       

       Id. at page 37.

       
       

   27. Quantitatively, priority one lands south of the Caloosahatchee River that are not designated for federal or state acquisition constitute 203,500 acres. Id. If implemented, the first recommendation would preserve the land where 43 panthers were found 98 percent of the time during the period of study.

       Id.

       
       

   28. Again ignoring the laws governing development in areas of critical state concern, the ninth recommendation is for DCA, the regional planning councils, and local governments to review their efforts in protecting panther habitat in the context of the provisions of the Habitat Preservation Plan.

   29. Closing the Gaps addresses the habitat needs of a variety of species, not only the Florida panther. The findings and conclusions of Closing the Gaps agree with those of the Habitat Preservation Plan as to the panther.

   30. Closing the Gaps finds that nearly all of the Big Cypress not publicly owned is good habitat for the Florida panther, as well as the Florida black bear and American swallow- tailed kite. Closing the Gaps reports that nearly all of the Big Cypress already hosts a stable black bear population. Closing the Gaps rates much of the privately owned portion of the Big

       Cypress as outstanding potential bear habitat, in terms of proximity to conservation areas, extent of roadless areas, diversity of cover types, and the presence of specific cover types. Closing the Gaps also finds that isolated County locales, including some in the affected area, present good potential habitat for the Florida sandhill crane, although much more extensive potential habitat is found north and east of Collier County.

   31. Closing the Gaps includes Collier County in the Southwest Florida Region, which does not include any of Monroe or Dade counties. Closing the Gaps calls this region, which extends north to Sarasota County, “the most important region in Florida” in terms of “maintaining several wide-ranging species that make up an important component of wildlife diversity in

       Florida . . ..” Id. at page 173.

       
       

   32. As to the area northwest of the Big Cypress National Preserve, Closing the Gaps asserts that the “mixture of cypress swamp, hardwood swamp, dry prairie, and pineland represents one of the most important wildlife areas remaining in Florida.” Id. at page 174.

   33. Closing the Gaps cautions: “The threats facing Florida panthers require quick and aggressive action if panthers are to be saved from extinction. . . . [B]ut the situation is far from hopeless if quick actions are taken.” Closing the Gaps, page 68.

   34. Repeating the warning of the Habitat Preservation Plan, Closing the Gaps cautions that “[o]ne of the greatest threats to

       the continued existence of panther habitat in south Florida is conversion of large areas of rangeland and native land cover to agriculture.” Id. In particular, citrus development threatens to subdivide existing, contiguous panther habitat, including that land covered by the proposed plan amendments.

   35. Closing the Gaps concludes with suggestions for how to protect valuable natural resources. Acknowledging that acquisition is the most effective and least controversial of methods, Closing the Gaps suggests the purchase of lesser rights, such as conservation easements or development rights. Omitting mention of the state program designating areas of critical state concern, Closing the Gaps advises that local governments protect valuable habitat through their comprehensive plans.

   36. The Plan currently prohibits various agricultural activities in the Big Cypress. The prohibited activities are the alteration of more than 10 percent of the site; installation of structures that would alter surface water flow; and implementation of drainage systems that fail to approximate the natural local surface flow regime, maintain sufficient groundwater levels to protect wetland vegetation, or retain, divert, or impede the naturally occurring flows in a slough or strand. The proposed amendments would permit these activities, if done for agricultural purposes.

   37. The data and analysis do not support the blanket reinstatement of the proposed agricultural exemptions. The data and analysis support the present Plan provisions. The data and

       analysis might support a more sophisticated approach to agricultural activities, with due regard to the extent and configuration of various types of agriculture in terms of the impact on endangered species and their habitat. However, the County has not attempted such an approach with the proposed plan amendments, and it is premature to consider further what such an approach might involve.

   38. To the exclusion of fair debate, the proposed amendments are unsupported by the data and analysis.

5. Internal Consistency

   
   

   1. Conservation Objective 1.1 required the County, by August 1, 1994, to adopt and implement a “comprehensive environmental management and conservation program” to “ensure that the natural resources, including species of special status,” are “properly, appropriately, and effectively identified, managed, and protected.” The covered species are those listed as endangered and those listed by the Florida Game and Fresh Water Fish Commission as endangered and potentially endangered.

   2. Conservation Objective 1.1 promised future action. By mid-1994, the County was required to adopt a program to “properly, appropriately, and effectively . . . protect. . .” listed species. Absent a Plan requirement that such protection be expressed in the Plan, the County arguably could have discharged this requirement by adopting land development regulations. And perhaps that was the intent of the 1993 changes to the land development regulations and Plan.

   3. The words of flexibility—“properly,” “appropriately,” and “effectively”—reveal the promissory nature of this objective. According to the Plan, these words were designed to leave the County flexibility until it later completed the necessary work so “specific statements could be developed for inclusion” in the Plan.

   4. By the language of Conservation Objective 1.1, the promise came due in 1994. Perhaps part of the County’s response was the elimination of the agricultural exemptions that it is now trying to reinstate. In any event, the Plan does not now allow the County to repudiate its undertaking to “protect” the Florida panther “properly, appropriately, and effectively.”

   5. Regardless of the flexibility accorded these three adverbs, Conservation Objective 1.1 does not permit the County to amend the Plan so as to facilitate further loss of panther habitat, which the data and analysis disclose would be the inevitable result of the reinstatement of the agricultural exemptions.

   6. To the exclusion of fair debate, the proposed plan amendments are inconsistent with Conservation Objective 1.1.

6. Consistency with the State Comprehensive Plan

1. As set forth in Section 187.201(8)(a), Florida Statutes, Goal 8 of the State Comprehensive Plan states that

   Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida

   shall improve and restore the quality of waters not presently meeting water quality standards.

   
   

2. As set forth in Section 187.201(b)10, Policy 8.10 of the State Comprehensive Plan is to “[p]rotect surface and groundwater quality and quantity in this state.”

3. Notwithstanding DEP’s comments, as reflected in the ORC, the record is not sufficiently developed as to water-quality issues to permit a finding that, to the exclusion of fair debate, the proposed amendments would conflict with these water-quality provisions of the State Comprehensive Plan.

4. As set forth in Section 187.201(8)(a), Goal 10 of the State Comprehensive Plan states that

   Florida shall protect and acquire unique habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition.

   
   

5. As set forth in Section 187.201(b)10, Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan are to

   1. Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational value.

      * * *

      3. Prohibit the destruction of endangered species and protect their habitats.

      * * *

      5. Promote the use of agricultural practices which are compatible with the protection of wildlife and natural systems.

      * * *

      7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value.

6. To the exclusion of fair debate, the proposed plan amendments are inconsistent with the provisions of the State Comprehensive Plan providing for the conservation of forests and the wildlife using the forests from intense agricultural uses, such as for citrus groves, vegetable farming, and improved pasture; the protection of the endangered Florida panther and other species through the protection of their critical and essential habitats; and the promotion of agricultural practices that are compatible with the protection wildlife and natural systems.

7. Notwithstanding general depictions of wetlands in various sources of data and analysis, the record is not sufficiently developed as to the treatment by the proposed amendments of wetlands in the Big Cypress to permit a finding that, to the exclusion of fair debate, the proposed amendments conflict with these wetland provisions of the State Comprehensive Plan.

   CONCLUSIONS OF LAW

   
   

   I. General

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.57(1) and 163.3184(9)(b), Florida Statutes. (All references to Sections are to Florida Statutes.)

9. Section 163.3184(9)(a) authorizes an “affected person” to challenge DCA’s determination that a plan amendment is in compliance. Section 163.3184(1)(a) defines an “affected person”

   as a person “owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review.” Such persons must also have submitted “oral or written comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the . . . plan amendment and ending with the adoption of the . . . plan amendment.

10. All the parties in this case have standing.

    
    

11. Section 163.3184(1)(b) defines “in compliance” as “consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, F.A.C., where such rule is not inconsistent with chapter 163, part II.”

12. Section 163.3177(8) states that all elements of a comprehensive plan “shall be based upon data appropriate to the element involved.” Section 163.3177(10)(e) states that goals and policies shall be “clearly based on appropriate data.”

13. Section 163.3177(9)(b) and (c) respectively provide that plan elements shall be “related to and consistent with each other” and that the plan shall be “consistent” with the state comprehensive plan. Section 163.3177(10) states that a plan is consistent with the state comprehensive plan if the local government plan is “compatible with” and “furthers” the state comprehensive plan. “Compatible with” means the local government plan is “not in conflict” with the state comprehensive plan.

    “Furthers” means the local government plan “takes action in the direction of realizing goals or policies of the state . . . plan.” These determinations require the consideration of the state plan “as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans.”

14. Section 163.3184(9)(a) provides that Petitioners must show to the exclusion of fair debate that the proposed plan amendments are not in compliance.

15. Petitioners have proved to the exclusion of fair debate that the proposed plan amendments are not supported by data and analysis and are inconsistent with the cited provisions of the Plan and the state comprehensive plan.

16. For these reasons, it is unnecessary to address the remaining issues raised by Petitioners. In general, Chapter 163, Part II, requires local governments to adopt future land use elements designating, among other things, agriculture and addressing various “land uses,” without regard to the definitions of “development” in Chapter 163, Part II, or the Plan.

RECOMMENDATION

It is

RECOMMENDED that the Department of Community Affairs submit this recommended order to the Administration Commission for entry of a final order determining that that proposed plan amendments are not in compliance.

DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997.

COPIES FURNISHED:

Attorney Thomas W. Reese 2951 61st Avenue South

St. Petersburg, Florida 33712

Shaw P. Stiller

Assistant General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100

Ramiro Manalich

Chief Assistant County Attorney Marjorie M. Student

Assistant County Attorney Collier County Attorney Office

8th Floor, Administration Building 3301 Tamiami Trail East

Naples, Florida 34112-4902

C. Laurence Keesey

Young, van Assenderp & Varnadoe, P.A. SunTrust Building

801 Laurel Oak Drive, Suite 300

Naples, Florida 34018

Stephanie Gehres Kruer General Counsel

2555 Shummard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100

James F. Murley, Secretary

2555 Shummard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENVIRONMENTAL CONFEDERATION OF ) SOUTHWEST FLORIDA, INC., )

and GARY BEARDSLEY, )

)

Petitioners. )

)

vs. )

) DEPARTMENT OF COMMUNITY AFFAIRS ) and COLLIER COUNTY, )

)

Respondents, ) Case No. 96-4752GM

)

and )

)

BARRON COLLIER PARTNERSHIP; ) COLLIER ENTERPRISES; RUSSELL A. ) and ALIESE P. PRIDDY; JOHN E. ) PRICE, JR.; and JAMES E. )

WILLIAMS, JR.; )

)

Intervenors. )

)

ORDER DECLINING REMAND

By Order of Remand dated November 5, 1997, the Department of Community Affairs (DCA) determined that the definition of "development" in Section 163.3164(6), Florida Statutes, creates an "agriculture exemption" in Chapter 163, Part II, Florida

Statutes. Relying on the exclusion of agricultural activities from the definition of "development," DCA ruled that the agricultural "exemption applies to comprehensive plan goals, objectives and policies that regulate development activities [and] supersedes limitations in those plan provisions regarding impacts of development activities on natural resources." DCA implied that the only limitations on the agricultural exemption are that local governments must depict the general distribution, location, and extent of agricultural uses on the future land use map, and these uses must be supported by data and analysis.

DCA concluded in the Order of Remand that the exemptions provided by the three proposed amendments in this case "are permissible under Chapter 163, Part II, Florida Statutes, because they apply to the specific development activities of site alternation, drainage, and land clearing and are limited in application to agricultural activities."

DCA concluded that a local government's decision to avail itself of the statutory agricultural exemption does not require supporting data and analysis. Thus, DCA ordered the Administrative Law Judge to revise paragraphs 42, 43, 49, 78, and

79 of the findings of the fact to "reflect this conclusion of law."

DCA concluded that a local government's decision to avail itself of the statutory agricultural exemption results in a "limited internal consistency analysis." DCA ruled that an amendment implementing the agricultural exemption "only may be

found to be internally inconsistent with another plan provision that states, rather than implies, that an exemption for agriculture activities shall not apply." Referring to Conservation Objective 1.1, DCA stated that the three proposed amendments created exceptions to this objective, but did not conflict with it. DCA ordered the Administrative Law Judge to revise paragraphs 84 and 85 of the findings of fact.

Employing similar reasoning as to the state comprehensive plan, DCA concluded that the "focus should be on the language of the plan provisions and the amendments themselves, not the effect of the amendments." In deference to the statutory right to an agricultural exemption, DCA ruled that "the determination of consistency with the state comprehensive plan . . . may not included an analysis of the impacts of the decision to apply the exemptions." DCA stated that the "Administrative Law Judge's findings in paragraphs [86-91] appear to be based on the predicate that natural resources will be adversely affected by the amendments." Thus, DCA ordered the Administrative Law Judge to revise these findings "to discount the impacts of the amendments in determining consistency with the state comprehensive plan."

DCA explicitly remanded the case to the Administrative Law Judge for two purposes: "for further findings as to whether the amendments lie within the scope of the agricultural exemption provided in Chapter 163, Part II, Florida Statutes [and] . . . to revise the findings of fact in paragraphs [42, 43, 49, 78, 79,

and 86-91] of the recommended order in accordance with the legal conclusions made by the Department above."

DCA has already determined, as a matter of law, that the three proposed amendments are within the scope of what DCA has broadly concluded, as a matter of law, to be an agricultural exemption within Chapter 163, Part II, Florida Statutes. At least in the case of three uncomplicated, fairly brief plan amendments, whose content itself is not in dispute, DCA's conclusion is properly a legal conclusion, and it is a legal conclusion within the substantive jurisdiction of DCA. Thus, there is no basis for a remand of the first issue.

The Administrative Law Judge is unclear as to the purpose of the remand of the second issue: i.e., the revision of various findings of fact. Without opining whether there are any factual issues remaining after DCA's ruling, the Administrative Law Judge does not find any such factual issues requiring additional findings. Perhaps, in an abundance of caution, DCA has the Administrative Law Judge to revise these findings in the mistaken notion that DCA lacks the authority to do so. However, the Administrative Law Judge is unaware of any provision of Chapter 120, Florida Statutes, that requires him to engage in the formal exercise of striking findings of fact that have become irrelevant due to a legal conclusion of the agency.

Based on the foregoing, it is

ORDERED that the Division of Administrative Hearings declines the remand.

DONE AND ORDERED this 12th day of November, 1997, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

James F. Murley, Secretary

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1997.

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Thomas W. Reese

2951 61st Avenue South

St. Petersburg, Florida 33712

Shaw P. Stiller

Office of General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100

Ramiro Manalich Marjorie M. Student

Collier County Attorney Office Administration Building, 8th Floor 3301 Tamiami Trail East

Naples, Florida 34112-4902

C. Laurence Keesey

Young, van Assenderp & Varnadoe, P.A. SunTrust Building

801 Laurel Oak Drive, Suite 300

Naples, Florida 34018

Docket for Case No: 96-004752GM

Orders for Case No: 96-004752GM