STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY )
AFFAIRS, )
)
Petitioner, )
)
and )
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COLLIER COUNTY AUDUBON ) SOCIETY, INC., and FLORIDA ) WILDLIFE FEDERATION, )
)
Intervenors, ) Case No. 98-0324GM
)
vs. )
)
COLLIER COUNTY, )
)
Respondent, )
)
and )
) COLLIER COUNTY SCHOOL BOARD, )
)
Intervenor. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Naples, Florida, on May 4-8, 1998.
APPEARANCES
For Petitioner: Shaw P. Stiller
Colin M. Roopnarine Assistant General Counsel
Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Intervenors Collier County Audubon Society and Florida Wildlife Federation:
Thomas W. Reese
2951 61st Avenue South
Saint Petersburg, Florida 33712
For Respondent: Marjorie M. Student
Rodney C. Wade
Assistant County Attorneys 3301 East Tamiami Trail Naples, Florida 34112
For Intervenor Collier County School Board:
Richard D. Yovanovich Roetzel & Andress
850 Park Shore Drive Naples, Florida 34103
STATEMENT OF THE ISSUE
The issue is whether the plan amendments adopted by Ordinances 97-56, 97-59, 97-61, 97-63, 97-64, 97-66, and 97-67
are in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
PRELIMINARY STATEMENT
By petition dated January 14, 1998, Petitioner alleged that Respondent amended its Growth Management Plan by adopting Ordinances 97-56, 97-59, 97-61, 97-63, 97-64, 97-66, and 97-67.
The petition alleges that these plan amendments are not in compliance with various provisions of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. The petition incorporates the Statement of Intent, which alleges that the ordinances made unlawful amendments to four elements, two subelements, the future land use map, and one master plan.
Issue 1. As for the Intergovernmental Coordination Element, the Statement of Intent alleges that the plan allows schools to be located in all land uses, except jurisdictional wetlands, which could encourage urban sprawl. Citing Section 163.3177(6)(a), Florida Statutes, the Statement of Intent alleges that the Plan, including Intergovernmental Coordination Element Policy 1.2.6, lacks policies establishing guidelines or criteria to ensure that schools are located proximate to residential development, fails to identify which land uses may be incompatible with schools, and fails to prohibit locating schools on environmentally sensitive lands, such as unique native habitats and habitats for endangered species.
For remedial action, the Statement of Intent recommends that Respondent revise Ordinance 97-56 to establish guidelines or criteria in Intergovernmental Coordination Element Policy 1.2.6 to ensure that schools are located proximate to residential development, identify land uses that may be incompatible with schools, and provide that schools should not be located on environmentally sensitive lands.
Issue 2. As for the Natural Groundwater Aquifer Recharge Subelement, the Statement of Intent alleges that Respondent revised Natural Groundwater Aquifer Recharge Subelement Objective
to implement the "Ground Water Protection Ordinance" to protect groundwater resources and aquifer recharge areas. Citing Rules 9J-5.003(86) and 9J-5.011(2)(b)5, Florida Administrative
Code, the Statement of Intent alleges that the objective fails to define the level of protection to be extended to groundwater resources and aquifer recharge areas.
The Statement of Intent also alleges that Respondent revised Natural Groundwater Aquifer Recharge Subelement Policies 1.2.1 through 1.2.4 to provide that the "Ground Water Protection Ordinance" would apply to existing and future development.
Citing Rules 9J-5.003(95) and 9J-5.011(2)(c)4, Florida Administrative Code, the Statement of Intent alleges that these policies are vague and fail to establish guidelines, standards, or criteria for applying the ordinance to development for the protection of the functions of groundwater recharge areas.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-59 to define a measurable aim, intent, or effect for Natural Groundwater Aquifer Recharge Subelement Objective 1.2 and to establish criteria in Natural Groundwater Aquifer Recharge Subelement Policies 1.2.1 through
1.2.4 for applying the "Ground Water Protection Ordinance" to development for the protection of the functions of groundwater recharge areas.
Issue 3. As for the Drainage Subelement, the Statement of Intent alleges that Respondent revised Drainage Subelement Policy
1.1.2 to provide that Respondent will implement the land development code and authority delegated to it by the South Florida Water Management District to ensure that pre- and post-
development discharge rates are monitored and adequate water management capacity will be available to serve approved developments. Citing Rules 9J-5.003(95) and 9J-5.011(2)(c)4, Florida Administrative Code, the Statement of Intent alleges that Drainage Subelement Policy 1.1.2 fails to specify guidelines, standards, or criteria for discharge rates and adequate water management capacity and thus fails to protect natural drainage features.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-61 to establish guidelines or criteria in Drainage Subelement Policy 1.1.2 for discharge rates and adequate water management capacity and thus to protect natural drainage features.
Issue 4. As for the Housing Element, the Statement of Intent alleges that Respondent has not used the best available data for determining farmworker housing needs. The Statement of Intent alleges that the Shimberg Center at the University of Florida has estimated a deficit of 2645 units of farmworker housing in Collier County. The Statement of Intent alleges that Respondent has rejected these data because they fail to account for recent downturns in local agricultural operations, but Respondent has failed to cite data to support its concerns.
Citing Rules 9J-5.005(2)(c), 9J-5.010(2)(b), 9J-5.010(3)(b)1, and
9J-5.010(3)(c)5, Florida Administrative Code, the Statement of Intent alleges that the omission of the best available data
hinders the development of pertinent objectives and policies concerning farmworker housing needs.
Citing Rule 9J-5.010(3)(c)5, Florida Administrative Code, the Statement of Intent alleges that Ordinance 97-63 fails to include policies providing guidelines or criteria for the location of farmworker housing.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-63 to include the best available data regarding the needs for farmworker housing and revise or add any objectives or policies needed to address any deficiencies.
The Statement of Intent also recommends that Respondent amend Ordinance 97-63 to add policies providing farmworker-housing locational guidelines and criteria, possibly including factors such as proximity to places of work, transit services, and hospitals.
Issue 5. As for the Golden Gate Area Master Plan, the Statement of Intent alleges that Respondent replaced Golden Gate Master Plan Policy 2.2.3, which had applied Chapter 28-25, Florida Administrative Code, to all of South Golden Gate Estates, with Golden Gate Master Plan Policy 2.1.4, which applies Chapter 28-25 only to the portion of South Golden Gate Estates that is within the Big Cypress Area of Critical State Concern. The Statement of Intent alleges that Chapter 28-25 restricts site alterations and construction of drainage facilities. Citing Rules 9J-5.005(2)(a), 9J-5.013(2)(c)3, 9J-5.013(2)(c)5,
9J-5.013(2)(c)6, 9J-5.013(2)(c)9, 9J-5.013(3)(a), and
9J-5.013(3)(b), Florida Administrative Code, the Statement of Intent asserts that these changes are not supported by data and analysis demonstrating that natural resources, such as wetlands, native habitats, and listed species, will be adequately protected within the part of South Golden Gate Estates that is outside of the Big Cypress Area of Critical State Concern.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-64 to include data and analysis evaluating existing resources, including wetlands, native habitats, and listed species, within the South Golden Gate Estates area; evaluate the level of protection that Plan policies provide to these natural resources; and amend Golden Gate Master Plan Policy 2.1.4 or add new policies to provide for the protection of these resources consistent with the level of protection given these resources by the provisions of Chapter
28-25, Florida Administrative Code.
Issue 6. As for the Conservation and Coastal Management Element, the Statement of Intent alleges that Respondent revised Conservation and Coastal Management Element Objectives 1.1 and
to authorize the Board of County Commissioners, in a process described in Conservation Appendix D, to designate environmentally sensitive areas as Natural Resource Protection Areas. The County's failure to submit Appendix D to Petitioner precluded a determination that the Natural Resource Protection
Areas program can effectively protect natural resources. Citing Rules 9J-5.005(2)(a), 9J-5.012(3)(b), 9J-5.012(3)(c),
9J-5.013(2)(b)2-4, 9J-5.013(2)(c), and 9J-5.013(3), Florida
Administrative Code, the Statement of Intent asserts that data and analysis do not support these changes concerning Natural Resource Protection Areas.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-66 to include the necessary data and analysis to describe the designation process for the Natural Resource Protection Areas program and to demonstrate that the program is viable and sufficient to protect the natural resources.
Issue 7. The Statement of Intent alleges that Respondent failed to submit Conservation and Coastal Management Element Appendix E, which was to be an analysis and inventory of natural disaster concerns, such as the number of persons requiring evacuation, number of persons requiring public shelter, number of available shelter spaces, evacuation routes, constraints on evacuation, and evacuation times. Citing Rules 9J-5.005(2)(a), 9J-5.012(2)(e)1, 9J-5.012(3)(b)7, and 9J-5.012(3)(c)4, Florida
Administrative Code, the Statement of Intent alleges that Conservation and Coastal Management Element Objective 12.1, which is to maintain or reduce hurricane evacuation times, and Policy 12.1.2, which is to promote the maintenance or reduction of
hurricane evacuation times through the regulation of land use amendments, are not supported by data and analysis.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-66 to include an analysis and inventory of natural disaster concerns, including the number of persons requiring evacuation, number of persons requiring public shelter, number of available shelter spaces, evacuation routes, constraints on evacuation, and evacuation times.
Issue 8. Citing Rules 9J-5.003(19) and 9J-5.[0]12(3)(c)7, Florida Administrative Code, the Statement of Intent alleges that Respondent revised Conservation and Coastal Management Element Policy 12.2.5 to define the Coastal High Hazard Area inaccurately.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-66 to define the Coastal High Hazard Area within Conservation and Coastal Management Element Policy 12.2.5 as the Category 1 evacuation zone, as delineated in the Regional Evacuation Study.
Issue 9. The Statement of Intent alleges that Respondent revised Conservation and Coastal Management Element Objective 6.3 to clarify that transitional zone wetlands are defined by state and federal permitting requirements. The Statement of Intent alleges that the revised objective lacks a meaningful measure because it requires only that a "portion" of these wetlands be preserved in non-agricultural development. Citing Rules
9J-5.003(86) and 9J-5.012(3)(b)1, Florida Administrative Code, the Statement of Intent alleges that Conservation and Coastal Management Element Objective 6.3 thus does not protect the wetlands.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-66 to define a measurable aim, intent, or effect for Conservation and Coastal Management Element Objective 6.3 for the protection of wetlands in non-agricultural development.
Issue 10. The Statement of Intent alleges that Respondent revised Conservation and Coastal Management Element Objective 7.3 to provide that Respondent shall continue to develop and implement programs for the protection of wildlife, including measures for the protection or relocation of listed species. The Statement of Intent alleges that the objective is vague concerning the level of protection for listed species. Citing Rules 9J-5.003(86) and 9J-5.013(2)(b)4, Florida Administrative Code, the Statement of Intent alleges that Conservation and Coastal Management Element Objective 7.3 does not provide for the protection of listed species.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-66 to define an aim, intent, or effect for Conservation and Coastal Management Element Objective
7.3 that can be meaningfully measured for the protection of listed species.
Issue 11. The Statement of Intent alleges that Respondent revised Conservation and Coastal Management Element Objective 9.4 to require Respondent to implement the local storage-tank compliance program to protect water quality. Citing Rules
9J-5.003(86) and 9J-5.013(2)(b)2, Florida Administrative Code, the Statement of Intent alleges that Conservation and Coastal Management Element Objective 9.4 is vague concerning the level of protection for water quality and thus fails to protect groundwater resources.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-66 to define an aim, intent, or effect for Conservation and Coastal Management Element Objective
that can be meaningfully measured for the protection of groundwater resources.
Issue 12. The Statement of Intent alleges that Respondent revised Conservation and Coastal Management Element Objective 9.5 to require Respondent to implement the "Ground Water Protection Ordinance" to regulate the use of septic tanks serving industrial uses. Citing Rules 9J-5.003(86) and 9J-5.013(2)(b)2, Florida Administrative Code, the Statement of Intent alleges that Conservation and Coastal Management Objective 9.5 is vague concerning the level of protection for water quality and thus fails to protect groundwater resources.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-66 to define an aim, intent, or
effect for Conservation and Coastal Management Element Objective
that can be meaningfully measured for the protection of groundwater resources.
Issue 13. The Statement of Intent alleges that Respondent revised Conservation and Coastal Management Element Objective
10.6 (the Statement of Intent erroneously refers to Objective 11.6) to require Respondent to implement the Coastal Barrier and Beach System Management Program of the land development code by conserving habitats, species, shoreline, and dunes within the coastal zone. Citing Rules 9J-5.003(86), 9J-5.012(3)(b)1,
9J-5.013(2)(b)2, 9J-5.013(2)(b)3, and 9J-5.013(2)(b)4, Florida
Administrative Code, the Statement of Intent alleges that Conservation and Coastal Management Element Objective 10.6 is vague concerning the level of protection for coastal resources and thus fails to protect coastal resources.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-66 to define a measurable aim, intent, or effect for Conservation and Coastal Management Element Objective 10.6 for the protection of coastal resources.
Issue 14. As for the Future Land Use Element and Future Land Use Map, the Statement of Intent alleges that Future Land Use Element Policy 3.1.d and Natural Groundwater Aquifer Recharge Subelement Policies 1.2.1 and 1.2.2 provide only that Respondent shall implement its "Ground Water Protection Ordinance" to protect wellfields. Citing Rules 9J-5.003(95) and
9J-5.006(3)(c)6, the Statement of Intent alleges that these policies do not specify appropriate land uses in wellfield protection areas.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-67 to provide guidelines or criteria in Future Land Use Element Policy 3.1.d for the application of the "Ground Water Protection Ordinance" to land use approvals and to identify land uses that are inappropriate for the protection of wellfields.
Issue 15. The Statement of Intent alleges that Respondent amended the Future Land Use Map to delineate the Coastal High Hazard Area based on the Category 1 storm evacuation zone, as determined by the Emergency Management Director. The Statement of Intent alleges that the best available data dictate that Respondent delineate the Coastal High Hazard Area based on the Category 1 storm evacuation zone, as determined by the Regional Evacuation Study. The Statement of Intent alleges that the Coastal High Hazard Area shown on the Future Land Use Map is inconsistent with the Regional Evacuation Study, 1995 update, because of the omission of part of the Copeland/Fakahatchee evacuation zone. Citing Rules 9J-5.003(19) 9J-5.005(2)(c), and 9J-5.006(4)[b]6, the Statement of Intent objects to the omission of the Copeland/Fakahatchee evacuation zone from the delineation of the Coastal High Hazard Area on the Future Land Use Map.
For remedial action, the Statement of Intent recommends that Respondent amend Ordinance 97-67 to delineate the Coastal High Hazard Area on the Future Land Use Map to incorporate at least the area defined by the Regional Evacuation Study as the Category
1 evacuation zone.
Issue 16. As for the State comprehensive plan, the Statement of Intent alleges that uncited provisions of Respondent's plan are inconsistent with the following provisions of the State comprehensive plan: Policies 8.2, 8.9, 8.10, 8.12,
9.4, 9.9, 10.1, 10.3, 10.7, and 26.7. The Statement of Intent recommends that Respondent revise the plan amendments to achieve consistency with the cited provisions of the State comprehensive plan.
In their petition to intervene, Intervenors Collier County Audubon Society, Inc., and Florida Wildlife Federation adopted the issues raised by Petitioner Department of Community Affairs. At the hearing, Intervenors dismissed their challenge of the Golden Gate Master Plan (Issue 5).
By notice of hearing issued February 23, 1998, the Administrative Law Judge set the case for final hearing on May 4-8, 1998.
By orders dated March 4 and 11, 1998, respectively, the Administrative Law Judge granted motions for leave to intervene
filed by Collier County Audubon Society, Inc., and Florida Wildlife Federation. In their motions, both intervenors incorporated the issues, although not the proposed remedies, identified in Petitioner's Statement of Intent.
On April 8, 1998, Petitioner and Respondent Collier County filed a Joint Motion for Continuance. The joint motion states that the parties were trying to settle the case and needed more time for negotiations. Although the joint motion cites Section 163.3184(10)(c), Florida Statutes, which requires a stay pending a "mediation or other alternative dispute resolution," the parties did not ask for a stay under the language of this statue. By pleading filed April 10, 1998, Intervenors Collier County Audubon Society, Inc., and Florida Wildlife Federation opposed the continuance and requested an expedited hearing, pursuant to Section 163.3189(3), Florida Statutes. By reply filed April 6, 1998, Respondent stated that further settlement discussions would likely resolve some, but not all, of the issues.
By order entered April 21, 1998, but announced to the parties on April 13, the Administrative Law Judge denied the joint motion for continuance. The administrative law judge granted the request for an expedited hearing.
The Collier County School Board filed a Petition to Intervene on April 20, 1998, and an Amended Petition to Intervene on April 22, 1998. In the petitions, the Collier County School Board sought to join Respondent in defending certain of the plan
amendments. The Administrative Law Judge granted the Amended Petition to Intervene at the start of the hearing.
On April 27, 1998, Respondent filed a Motion for Formal Mediation, pursuant to Section 163.3184(10(c), Florida Statutes. Petitioner joined in this motion by response filed April 29, 1998. The Administrative Law Judge denied this motion at the start of the hearing.
On April 30, 1998, Elfra Madilus filed a Petition for Leave to Intervene as Petitioner. In a telephone call in the presence of the other parties, the Administrative Law Judge stated to the attorney for Mr. Madilus the dates set aside for the final hearing, but neither the attorney nor Mr. Madilus appeared at anytime. By the end of the hearing, the Administrative Law Judge denied the petition to intervene of Mr. Madilus.
At the hearing, Petitioner called five witnesses and offered into evidence Exhibits 1, 2, 9, 10, 12, 35, 39 and 41.
Intervenors Collier County Audubon Society, Inc., and Florida Wildlife Federation called four witnesses and offered into evidence Exhibits 1-8. Respondent called seven witnesses and offered into evidence Exhibits 1-25. Intervenor Collier County School Board called five witnesses and offered into evidence Exhibits 1, 2, 5-10 and 14. All exhibits were admitted.
The court reporter filed the transcript on July 10, 1998.
FINDINGS OF FACT
Background
On November 14, 1997, Respondent Collier County (the County) adopted numerous amendments to its Growth Management Plan (the Plan). The County adopted these Plan amendments (the Plan Amendments) pursuant to its Evaluation and Appraisal Report (EAR). By law, local governments must assess their comprehensive plans every seven years and prepare an EAR.
On December 24, 1997, Petitioner Department of Community Affairs (DCA) published its Notice of Intent to find the Plan Amendments not in compliance with the criteria of Chapter 163, Part II, Florida Statutes (Chapter 163), and Chapter 9J-5, Florida Administrative Code (Chapter 9J-5). A detailed Statement of Intent is attached to the Notice of Intent.
The petition of DCA incorporates the Statement of Intent. The petition of Intervenors Collier County Audubon Society, Inc., and Florida Wildlife Federation (Intervenors) also incorporates by reference the Statement of Intent. The petitions cite 16 grounds for a determination that the Plan Amendments are not in compliance with Chapter 163 and Chapter 9J-5, although, at hearing, Intervenors dropped Issue 5.
Intervenor Collier County School Board (School Board) intervened to defend the Plan Amendments regarding the siting of schools.
The parties stipulated to the standing of all of the parties.
The Plan, as amended by the Plan Amendments (County Exhibit 1), discloses repealed and added language by strikeouts and underlines, respectively. All but two of the issues involve amended Plan provisions. The two exceptions are the Intergovernmental Coordination Element (ICE) (Issue 1) and Housing Element (Issue 4).
In Issue 1, DCA and Intervenors challenge ICE Policy
1.2.6 and its effect of allowing schools to be sited anywhere in Collier County. Although the County did not amend ICE Policy 1.2.6, it substantially amended another Plan provision with the effect of relaxing restrictions on the siting of schools.
In Issue 4, DCA and Intervenors challenge Plan provisions governing farmworker housing as not supported by the best available data and analysis. Although the County did not amend these Plan provisions, Petitioner and Intervenors contend that updated data and analysis demanded that the County do so.
Issue 1
ICE Policy 1.2.6 states:
The County shall continue to coordinate with the Collier County School Board on the site selection for new schools and the provision of infrastructure, particularly roads, to support existing and proposed school facilities in accordance with the Interlocal Agreement adopted in accordance with Chapter 163.3177 F.S. on June 25, 1996.
Although unamended by the Plan Amendments, ICE Policy
1.2.6 is subject to challenge because of the effect of other EAR amendments on school siting.
Plan Amendments in the Future Land Use Element (FLUE) affect school siting, but the effect of other Plan Amendments is to restrict slightly school-siting standards.
For instance, prior to the Plan Amendments, the Plan generally allowed schools in areas designated Agricultural/Rural. As amended, FLUE II.g adds some restrictions to schools as a land use in areas designated Agricultural/Rural. This provision reads:
Community facilities such as churches, group housing uses, cemeteries, and schools which shall be subject to the following criteria:
Site area and school size shall be subject to the General Educational Facilities Report submitted annually by the Collier County School Board to the Board of County Commissioners.
The Site must comply with the State Requirements for Educational Facilities adopted by the State Board of Education.
The site shall be subject to all applicable State or Federal Regulations.
The County made the identical change in permitting schools in the Conservation designation. For the Urban designation, the County repealed the identical former language, but, in adding schools as a permitted use, did not include the three bulleted provisions quoted above.
However, a Plan Amendment to the Sanitary Sewer Subelement (Sanitary Sewer) outweighs the slight restrictions added in the Plan Amendments to the FLUE and results in a net relaxation of the school-siting standards. In the Plan
Amendments, the County repealed Sanitary Sewer Subelement (Sanitary Sewer) Policy 1.1.6, which provided:
By January 1, 1990, review existing criteria and regulatory framework for septic tank installations and determine the suitability of same for Collier County by December 31, 1990, implement local ordinances regulating septic tank installations if above review indicates need to do so.
Prior to its repeal, Sanitary Sewer Policy 1.1.6 threatened the continued reliance on septic tanks, especially for more intensive uses, such as schools. Although reliance upon septic tanks is not the School Board's preferred means of disposing of sanitary sewage, the School Board has determined that the use of septic tanks is economically feasible. At present, septic tanks exclusively serve the sanitary sewer needs of one public school, Big Cypress Elementary School, which is located on Golden Gate Boulevard east of State Road 951 and is attended by over 1000 students.
As long as Sanitary Sewer Policy 1.1.6 was in effect, the School District was on notice that its ability to site schools without regard to the availability of central sewer, including larger package plants, was in doubt. The repeal of Sanitary Sewer Policy 1.1.6 eliminates that doubt and invites school-siting decisions without regard to Plan-imposed, or at least -threatened, requirements of central sewer. As a result of the Plan Amendments, the Plan effectively allows the School
District to site schools through the entire range of future land use designations, including conservation areas.
In place of regulating school uses like other land uses--i.e., in the Plan--the County instead has elected to resolve school-siting issues through another means--i.e., an Interlocal Agreement, which is mentioned in Sanitary Sewer Policy 1.2.6. However, the use of the Interlocal Agreement, rather than the Plan, attenuates public participation, precludes
plan challenges by the public or DCA under Chapters 163 and 9J-5, and fails to ensure that the two parties will site schools consistent with the minimum criteria of Chapters 163 and 9J-5.
Withdrawing school-siting decisions from the comprehensive planning process interferes with the ability of the Plan to address the demand that schools will place upon public facilities, such as traffic, sewer, water, solid waste, drainage, and recreation.
As do the County and School Board in the Interlocal Agreement, the Florida Department of Education likewise recognizes the direct effects of school siting. Section 1.4(2) of the State Requirements for Educational Facilities, 1997, published by the Florida Department of Education, identifies numerous factors that school boards should consider in siting schools, including the compatibility of uses of adjacent property, the capacity of roads, and the effect (on the buildings) of siting in a floodplain.
As the floodplain can affect the school, so the school can affect the floodplain, but the effects of schools on natural and manmade resources receives little, if any, attention in the State Requirements for Educational Facilities or the Interlocal Agreement. When addressing public facilities, the educational planning documents focus on the effects upon the users of the school, such as the capacity of the roads to accommodate the parents driving their children to school or the location of the school in an area safe from flooding.
Schools also have indirect effects on natural and manmade resources, especially when a public school is sited in a relatively undeveloped area. Induced sometimes by the availability of relative inexpensive land and developer-provided incentives, the construction of a public school exemplifies the "if you build it, they will come" scenario. The construction of a public school may compete with excess road capacity as a development-attractor to a relatively undeveloped area within a larger area undergoing brisk population growth. Thus, school- siting decisions may have large indirect effects on the natural and manmade resources in an area, well in excess of the impact of the school itself or the demand upon public facilities made by its users.
DCA and Intervenors have proved by a preponderance of the evidence that, after consideration of the Plan Amendments affecting the siting of schools, ICE Policy 1.2.6 is inconsistent
with the criterion of designating the future general distribution, location, and extent of educational uses of land.
By ignoring the issue of school-siting in the Plan, the County has failed to address, in the planning process and in the Plan, issues such as the proximity of schools to existing or future residential development, the identification of land uses incompatible with schools, and the prohibition of the siting of schools in locations that fail to preserve environmentally sensitive lands, such as floodplains, unique native habitats, or habitats for listed species. By relaxing its school-siting standards, the Plan fails to meet the pleaded minimum criteria of land use planning and forfeits an opportunity to discourage urban sprawl and encourage a comprehensive planning solution to the challenges of population growth and the development and redevelopment of land.
Issue 2
As amended, Natural Groundwater and Aquifer Recharge Subelement (Groundwater) Objective 1.2 replaces a promise to adopt a groundwater protection ordinance by August 1, 1989, with the following:
Implement the Collier County Ground Water Protection Ordinance that includes: regulation of land use activities County-wide as well as within wellfield protection zones surrounding identified public water supply wellfields and identified sensitive recharge areas; and County-wide ground water quality criteria, to protect the County's ground water resources as well as sensitive recharge areas.
Groundwater Policies 1.2.1 through 1.2.4 provide:
The Ordinance will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources.
The Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance, to provide an appropriate level of protection to sensitive recharge areas.
The Ordinance will address the breaching of confining units by improper well construction, rock mining and other excavations, blasting and other similar activities. Apply the criteria of those sections of the Collier County Ground Water Protection Ordinance that address: breaching of confining units by improper well construction, rock mining and other excavations, blasting, and other similar activities to protect recharge of the Surficial Aquifer System, to planned/permitted future development.
The County will implement the Ordinance in a manner to minimize duplication of effort between the County and other State agencies. Implementation of the Collier County Ground Water Protection Ordinance will follow Ordinance procedures, and other internal County procedures in a manner to minimize duplication of effort among County, municipal, and State agencies.
DCA and Intervenors have proved by a preponderance of the evidence that Groundwater Objective 1.2 does not supply a specific, measurable, intermediate end that is achievable and marks progress toward a goal. As presently formulated, this
objective is nothing but a promise of the implementation of a land development regulation whose regulatory content or performance criteria are omitted from the Plan. The objective defers the establishment of regulatory content and performance standards to the land development regulations. The objective itself offers no protection to the groundwater resources or aquifer recharge areas because the County has relegated this crucial task to the land development regulations.
The deferral and relegation of regulatory content and performance standards--required by Chapters 163 and 9J-5--to the land development regulations gravely undermines the entire comprehensive planning process for several reasons.
Through deferral and relegation, the County retains the ability to amend or repeal the regulatory content and performance standards without a Plan amendment, which means without the public participation, agency review, and opportunity for a hearing that must accompany Plan amendments. Through deferral and relegation, the County insulates the regulatory content and performance criteria that are required to be in the Plan from determinations of consistency with the criteria of Chapters 163 and 9J-5 (including the crucial criteria of minimum content and supporting data and analysis), the regional policy plan, and the state comprehensive plan.
Deferral and relegation to land development regulations do not insulate the provisions setting regulatory content and
performance criteria from a consistency determination with the provisions of the Plan. However, the deferral and relegation effectively limit substantially affected persons to challenging the consistency of the land development regulations with the Plan, although this may be a meaningless right if the Plan lacks the required regulatory content and performance standards, against which the land development regulations may be compared. Also, because the comparison is between a land development regulation and Plan provision, the result of a finding of any inconsistency raises the likelihood of the elimination of the land development regulation, rather than the Plan provision with which it is in conflict, due to the relative ease of amendment or repeal of land development regulations as opposed to Plan provisions.
Lastly, through deferral and relegation, the County insulates any regulatory content and performance criteria from an enforcement action, under Chapter 163, concerning development orders that are inconsistent with Plan provisions. Although other enforcement actions may be available for development orders inconsistent with land development regulations, the Chapter 163 action provides the added safeguards of statutory intervention by the Florida Department of Legal Affairs and recognition of relatively broad standing among private parties.
DCA and Intervenors have proved by a preponderance of the evidence that the four policies do not identify programs and
activities by which the County will achieve the planning goals or objectives that the policies are supposed to serve. Like Groundwater Objective 1.2, Policies 1.2.1, 1.2.2, 1.2.3, and
1.2.4 improperly defer and relegate to the land development regulations the identification of those programs and activities that are required to be in the Plan. The policies are impermissibly vague because they rely on land development regulations to identify the programs and activities necessary to achieve goals and objectives, rather than identify in the Plan the programs and activities, possibly leaving to the land development regulations the task of providing an additional level of detail for these programs and activities. For the reasons stated in Paragraphs 26-30 above, the County has improperly deferred and relegated to the land development regulations descriptive material that must be contained in the Plan.
DCA and Intervenors have proved by a preponderance of the evidence that the Plan, including Groundwater Objective 1.2, is inconsistent with the criterion of an objective protecting the functions of natural groundwater recharge, and the Plan, including Groundwater Policies 1.2.1 through 1.2.4, is inconsistent with the criterion of regulating land use and development to protect the functions of natural groundwater aquifer recharge areas.
Issue 3
Drainage Subelement (Drainage) Policy 1.1.2 provides:
Outline how to iImplement procedures and projects within the County's Land Development Code and those procedures delegated by South Florida Water Management District during 5 year planning time frame to ensure that at the time a development permit is issued, pre- development versus post development discharge rates are monitored to assure that adequate water management facility capacity is available or will be available when needed to serve the development.
The flaws of the Drainage Policy 1.1.2 start with the County's failure to adopt, in the Plan, an enforceable level of service (LOS) standard for drainage. Drainage Objective 1.2 provides that the County shall "Adopt Maintain adopted level of service standards for basins and sub-basins identified in the Water Management Master Plan." This master plan appears to be a part of the land development regulations, not the Plan. For the reasons stated in Paragraphs 26-30 above, this deferral and relegation of a crucial and required provision of a Plan--i.e., setting a drainage LOS--undermine the Plan's approach to drainage.
Drainage Policy 1.2.1 formerly provided that the County would use the findings from a study to be conducted under the master plan to "identify existing levels of service for all the drainage basins and sub-basins." A parenthetical note states that the County completed this task in May 1990.
New Drainage Policy 1.2.1.A provides, for "future 'private'" development, that the drainage LOS standards are the "water quantity and quality standards" specified in various
ordinances that are not incorporated into the Plan. New Drainage Policy 1.2.1.B assigns "existing 'private'" development and "existing or future public drainage facilities" LOS standards identified in the master plan. For such development, a table assigns letters to various basins, but the meaning of the letter is not explained in the Plan.
The net effect of this objective and policies is that the Plan defers and relegates to the land development regulations the crucial task of setting comprehensive drainage LOS
standards--comprehensive in the components of drainage (e.g., hydroperiod, rate, quality, and basin) and comprehensive in the scope of development (i.e., all private and public development and redevelopment, including public development, not just "public drainage facilities").
In the context of other Drainage provisions, Drainage Policy 1.1.2 is essentially useless. It defers and relegates to the land development regulations the regulatory content (including setting a drainage LOS), performance criteria, and identification of programs and activities. On its face, given the failure of the Plan to set a drainage LOS, Drainage Policy
1.1.2 promises nothing more than the monitoring of post- development runoff.
DCA and Intervenors have proved by a preponderance of the evidence that the Drainage Policy 1.1.2 does not identify programs and activities by which by which the County will achieve
the planning goals or objectives that the policy is supposed to serve and that the Plan lacks a policy regulating land use and development to protect the functions of natural drainage features.
Issue 4
This issue raises the question whether the County relied on the best available data when preparing Plan provisions concerning farmworker housing.
In their joint proposed recommended order, the County and School Board offer proposed Plan amendments providing for the collection of new farmworker housing data in 1998, the analysis of the data in 1999, and the adoption of any necessary Plan amendments in 2000. This is consistent with the tenor of the testimony of their witnesses: the County wants more time to conduct more studies to determine if farmworker housing needs may have lessened somewhat.
The data and analysis accompanying the revisions to the Housing Element (Housing) include analysis of 1990 census data done by the Shimberg Center at the University of Florida. Tables showing the percentage in the unincorporated County of owners and renters, respectively, paying more than 30 percent of their income for housing reveal that, for persons with annual incomes of less than $10,000, the percentages are 76.1 and 95.9; for persons with annual incomes of $10,000 to $19,999, the
percentages are 44.3 and 75.9; and for persons with incomes of
$20,000 to $34,999, the percentages are 32.3 and 31.4.
After reciting these data, the Housing data and analysis state:
The previous tables indicate a strong need for more affordable owner and rental opportunities throughout the County. Very low, low[,] and moderate income families who pay more than 30 [percent] of their gross monthly income on housing cost are considered to be "cost burdened" according to the U.S. Department of Housing and Urban Development.
As a County witness testified, 85-90 percent of County farmworkers reside in Immokalee. According to the County's own data, 36.8 percent of the housing units in the Immokalee area are substandard. The next highest area has 13.4 percent substandard housing, and the next highest has 4.7 percent substandard housing. Of the 4507 units in the Immokalee area, 101 lack plumbing, 74 lack kitchens, and 134 have more than 1.01 persons per room (with some units appearing in more than one category).
After reciting these data, the Housing data and analysis state:
As the housing stock continues to age, there is a need to provide housing rehabilitation programs for the very low to moderate income rental and owner occupied households in order to prevent continuing deterioration and potential substandard housing conditions.
After displaying other data, the Housing data and analysis report that various tables prepared by the Shimberg Center
project a very large deficit of affordable, renter occupied and owner occupied dwelling units for the years 2000, 2005 and 2010.
Local estimates have not been calculated but efforts to address the estimated deficits are identified in the Housing Element. According to the Shimberg Center data, there is a county wide need for 4,973 affordable rental units and 9,500 affordable owner occupied units by 2000 for a total of 14,473 affordable housing units.
Responding to these data, the Housing data and analysis state:
The City [Naples] established a goal of encouraging the development of 500 affordable housing units each year within the urban area boundaries identified in a 1994 Interlocal Agreement. Based upon County data collected for this Interlocal Agreement's 500 unit goal, the statistics indicate that 30 [percent] of all single family building permits issued since July 1994 meet the Interlocal Agreement[']s affordable housing criteria. Since the adoption of this Interlocal Agreement, an average of 600+ affordable housing units have been produced countywide each year. Since the urban area target of 500 unit[s] per year has been met, it is recommended that the target be increased to 750 units countywide. A target of 750 units countywide is realistic based upon building permits and [certificates of occupancy] issued annually.
The tables contain a comprehensive projection of affordable housing for all income ranges and are not limited to persons with moderate or less annual incomes. Thus, for unincorporated Collier County, one table discloses a deficit of
287 units by 2010 for persons making over $150,000 annually.
Addressing farmworker housing specifically, the Housing data and analysis mention the County's 1994 Immokalee Housing
Study. Housing designated exclusively for farmworkers consists of privately owned migrant labor camps and Farm Worker Village, which was built with the assistance of the Farmers Home Administration and is owned and operated by the County. The Housing data and analysis note that farmworkers "are also housed in a variety of other housing that is usually substandard, deteriorated or overcrowded."
The Housing data and analysis report that farmworker housing in the Immokalee area includes migrant labor camps and shared housing. The Housing data and analysis note that there is no farmworker housing located on the farms in the Immokalee area.
According to the Housing data and analysis, the 109 migrant camps in the County comprise 1987 units. The County owns and operates 571 one- to four-bedroom units for rent at affordable rates, but, at the time of the survey, there were 60 applications on the waiting list for these units.
The County also has 276 Section 8 certificates from the Farmers Home Administration. Families paying more than 30 percent of their income on housing are eligible for these certificates, which are limited to housing expenses in rural areas.
Surveying existing studies, the Housing data and analysis concludes that 4.5 persons reside in each farmworker household. Restating projections from the County's 1994 Immokalee Housing Study, the Housing data and analysis report
that, in 2005, farmworker housing demand will consist of 10,711 permanent units and 3251 seasonal units for a total of 13,962 units.
For 1995, the Housing data and analysis calculate that the 2961 available seasonal units could accommodate, at 4.5 persons per dwelling unit, 13,324 of the 33,134 seasonal residents, leaving a shortfall of housing for nearly 20,000 seasonal residents or, at 4.5 persons per dwelling unit, 4402 units. However, this analysis understates projected needs for farmworker housing because, without analysis, it uses for all future years the current estimate of 4.5 persons per dwelling unit without considering whether greater availability of affordable housing would reduce the number of persons per dwelling unit.
The dispute begins to emerge when the Housing data and analysis note the obvious difficulty of establishing accurate farmworker population figures and conclude that the population increases are relative to the amount of acreage in production at the time of the population count. The County contends that future farmworker housing demands are artificially high because they do not reflect recent trends reducing agricultural operations.
However, the County's contentions are unsupported by data and analysis collected in accordance with a professionally recognized methodology. To the contrary, the County elsewhere in
the Plan estimated that seasonal farmworker residents, who are present in the Immokalee area during the winter months, would increase by 25 percent after 1992 "to reflect the anticipated expansion of the citrus industry." FLUE, page 57. The County elsewhere relied on the projection of the South Florida Water Management District that agricultural water demands will increase by 46 percent from 1990 to 2010. Conservation, page 35.
According to the FLUE data and analysis, nearly 6000 acres of land in the Immokalee area were devoted to agricultural uses. This is only about 2.5 percent of the nearly 250,000 acres in agricultural uses in the County and only about 0.4 percent of the 1.3 million acres in the County.
The County's contention of declining needs for farmworker housing repudiates the findings and conclusions of the County's own 1994 Immokalee Housing Plan and the Shimberg Center's more recent work. Rather than address these data and analysis in preparing the Housing goals, objectives, and policies, the County relied on speculation and conjecture that farmworker housing needs may have declined, or may soon decline, due to a perceived decline in agricultural operations.
No data indicate what agricultural operations have declined or may decline or, more importantly, the effect of any such decline on the need for farmworker housing. The County did not analyze even this conjecture and speculation from the perspective of other relevant data and analysis, such as the
leveling off of a decline, in the mid-1990s, in tomato farming; possibly offsetting trends in other labor-intensive farming; possibly offsetting trends in labor-intensive farming around Immokalee; and trends in Hendry County labor-intensive farming and the impact of Hendry County farmworkers choosing to reside in Immokalee.
The available data and analysis reveal ongoing shortages in affordable housing of nearly 15,000 units by 2000. For migrant farmworkers, the available data and analysis suggest a shortage of nearly 4500 units in 1995. The data and analysis suggest that other farmworker substandard housing units will be lost to attrition. Except as it involves farmworker housing, the County relied on a 25 percent increase in farmworkers after 1992 and a 46 percent increase in agricultural water demands from 1990 to 2010.
Ignoring the available data and analysis, the County relied on vague concerns about a reduction in labor-intensive agricultural operations in support of its development of affordable housing strategies that do not focus on the unique and pressing needs of farmworkers. The following Plan provisions repeatedly fail to respond adequately to the quantitative and qualitative housing needs of farmworkers.
Housing Objective 1 is to increase by only 500 units annually the number of new affordable housing units for persons earning a wider range of incomes than do farmworkers "to continue
to meet the housing needs of all current and future very-low, low[,] and moderate income residents of the County, including those households with special needs such as rural and farmworker housing in rural Collier County."
Failing to focus measurably the affordable-housing effort on farmworker housing, Housing Policy 1.4 states:
Affordable housing will be distributed equitably throughout the County using strategies which include, but are not limited to, density bonus agreements and impact fee waivers or deferrals. In addition, affordable housing will be located where adequate infrastructure and services are available.
Housing Objective 2 is to create a nonprofit housing development corporation by 2000, with representatives from business, government, housing advocates, and the general community, to assist the County in achieving the annual goal of
500 new units, as stated in Housing Objective 1.
Housing Policy 2.1 is to increase the supply of housing for very low, low, and moderate income residents, including farmworker housing, through the use of existing programs, such as low income housing tax credits, density bonuses, and impact fee waivers or deferrals.
DCA and Intervenors have proved by a preponderance of the evidence that the cited Housing objectives and policies are not supported by the data and analysis. In preparing the revised provisions of the Housing Element, the County relied on speculation and anecdotal evidence of reductions in the numbers
of farmworkers, declining to address the professionally collected data and analysis of that data, including the County's own data- collection and -analysis.
DCA and Intervenors have proved by a preponderance of the evidence that the Plan lacks policies providing guidelines or criteria for the location of farmworker housing. The data and analysis reveal a crucial need for such housing in the Immokalee area, but the Plan, most notably Housing Policy 1.4, fails to address these data and analysis by failing to focus affordable- housing efforts for farmworkers where the need is greatest. The Plan also fails to establish locational criteria or guidelines to assure that the farmworker housing best serves the needs of the farmworkers.
Issue 5
Prior to these amendments, Golden Gate Area Master Plan (Golden Gate) Policy 2.2.3 provided that the County would apply the stricter of its special development standards or Chapter
28-25, Florida Administrative Code, to applications for development within South Golden Gate Estates. However, these amendments repealed Golden Gate Policy 2.2.3 and replaced it with new Golden Gate Policy 2.1.4, which provides that the County will apply Chapter 28-25, Florida Administrative Code, to applications in "those Golden Gate Estates units located within the Big Cypress Area of Critical State Concern."
The state rules limit site alterations to 10 percent of the total site, limit impervious areas to 50 percent of the site, and prohibit alteration of the natural flow of water. The effect of the Plan Amendment is to remove these land use restrictions from the part of the South Golden Gate Estates that is not in the Big Cypress Area of Critical State Concern.
As reported in the Golden Gate data and analysis, "hailed as the world's largest subdivision," the Golden Gates Estates subdivision encompasses about 170 square miles or eight percent of the County. Golden Gates Estates is located in central Collier County. Part of Golden Gate Estates is located east of Interstate 75, north of the point at which the interstate turns east and heads toward Miami. South Golden Gate Estates is located south of Interstate 75.
Gulf American sold 95 percent of the lots in Golden Gate Estates by 1965. South Golden Gate Estates comprises around 17,000 parcels, including about 10,000 parcels under 2.25 acres. Approximately 2000 people live in South Golden Gate Estates, although the actual number may be higher due to unpermitted construction. About 8000 people live in the remainder of Golden Gate Estates.
Totaling 94 square miles, South Golden Gate Estates is surrounded by the Florida Panther National Wildlife Refuge to the north, the Picayune Strand State Forest and Belle Meade (about 16,000 acres on the CARL list for state acquisition) to the west,
the Cape Romano/Ten Thousand Islands Aquatic Preserve to the south, and Fakahatchee Strand State Preserve to the east. The Fakahatchee Strand State Preserve is separated from Big Cypress National Preserve to the east by State Road 29. Northwest of the Cape Romano/Ten Thousand Islands Aquatic Preserve is Rookery Bay Aquatic Preserve, which lies between Marco Island and Naples Bay.
Major public conservation lands in the County--all near Golden Gate Estates--include Big Cypress National Preserve (534,947 acres), Fakahatchee Strand State Preserve (65,524 acres), and Florida Panther National Wildlife Refuge (24,300 acres). Major additions include another 100,000 acres added to the Big Cypress National Preserve, but in the northeast part of the County away from Golden Gate Estates, and 30,000 acres in Golden Gate Estates (with nearly 12,000 acres already acquired). A large portion, if not all, of South Golden Gate Estates is proposed for state acquisition under the Save Our Everglades program, but progress, until recently at least, has been slow.
The state has imposed the Big Cypress Area of Critical State Concern over the entire County east of Golden Gate Estates, as well as a large area south of South Golden Gate Estates. Most of the Area of Critical State Concern encompasses publicly owned land, but privately owned land is also within the Area of Critical State Concern.
DCA contends that the data and analysis do not support the Plan Amendments that are the subject of Issue 5. The effect
of the replacement of one policy with another policy is to relax development restrictions in the part of Golden Gate Estates outside of Areas of Critical State Concern.
The Drainage data and analysis describe the patterns of surface water runoff characteristic of the County prior to alteration of these natural drainage features. In general, there is a nearly imperceptible ground slope in the County from a high point near Immokalee in the north-northeast corner of the County to the south and southwest to the Gulf of Mexico. Slopes as little as 4 inches per mile are common east of State Road 29; slopes of 12 inches per mile are typical to the west of State Road 29. Prior to construction of artificial drainage facilities, the runoff traveled slowly through long sloughs, which are shallow but wide depressions, and extensive cypress forests in its journey toward the estuaries and bays of the Gulf of Mexico.
The natural rhythm between the wet season and the slow, natural drainage left vast parts of the County, including what is now Golden Gate Estates, seasonally inundated. The natural drainage patterns attenuated the runoff, so as to permit the upstream deposit of much of the sediments and nutrients borne by the runoff prior to its entry into rivers and bays. The natural drainage patterns also created native habitat for various plant and wildlife species seeking the periodic or permanent wetlands hydrated by the runoff.
The first major disturbance of this natural drainage process came with road construction. Development of roads in the County typically involved the excavation of a canal and the application of the excavated material into the road base, so as to raise the road surface above the surrounding water level. State Road 29, which runs south from Immokalee to Everglades City in the southeast corner of the County, was constructed in this matter in 1926, as was U.S. Route 41 (Tamiami Trail) two years later, reportedly in a transaction in which Baron Collier constructed the road in return for a conveyance from the state of what became Collier County.
The logging industry used the same process to construct tramways for transporting cypress logs during the 1950s. The extension of these early canals allowed the expansion of agricultural and other uses of seasonally or permanently inundated lands.
The Drainage data and analysis conclude their description of this process as follows:
The above described method of "ditch and drain" development in Collier County resulted in a haphazard series of canals that had a tendency to lower the water table and change the flow patterns of the natural drainage basins. In addition to canals, many dikes were constructed around very large tracts of land and the water levels lowered by pumping to create agricultural land. This combination of development events impacted large areas of wetland and began to concentrate the flow of stormwater run-off instead of allowing the traditional sheetflow across the land.
In the area adjacent to Naples, developers had cut canals in order to lower the water table and facilitate the construction of housing. In the late 1950s and early 1960s, Gulf American Corporation took this practice to a new level in the development and worldwide marketing of 173 square miles of land and water that came to be known as Golden Gate Estates. Prior to development, much of the area consisted of waterbodies several feet deep through the wet season. In general, the area was flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie.
In order to market Golden Gate Estates as a vacation and retirement community, Gulf American undertook a vast drainage project in an effort to eliminate from the landscape and waterscape waterbodies several feet deep through the wet season and flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. Major components of this effort were clearing 813 miles of paved and limerock roads and dredging 183 miles of canals, which drain into the Gordon River, Naples Bay, and Faka Union Bay.
The County approved the Golden Gate Estates subdivision in early 1960, and, five years later, 90 percent of the land had been platted and sold in parcels of 1.25, 2.5, and 5 acres. As the Golden Gate data and analysis explain, the County rezoned the area to low-density residential when it became apparent that it could not provide essential facilities and services.
The artificial drainage facilities that replaced natural drainage features and converted land from water facilitated the urbanization of the County. Urbanization brought large increases in impervious surface. Large increases in impervious surface produced even more and faster runoff and a decrease in percolation into the groundwater system. The effect on the artificial drainage system was to overwhelm it during major or serial storm events, resulting in flooding. Flooding completed the cycle by resulting in additional artificial drainage facilities.
The addition of more artificial drainage capacity adversely affected natural resources in several respects. The addition of more artificial drainage capacity accelerated the rate at which canals transported stormwater into the Gulf, so as to eliminate or reduce the duration of flooding. But the rushing stormwater destabilized channels and reduced the opportunity for natural filtration of sediments and nutrients. The bays and estuaries into which the stormwater eventually runs thus received increased loads of sediments from destabilized channels and increased loads of sediments, nutrients, and pollutants from decreased filtration.
Another effect of the addition of more artificial drainage capacity was to lower the water table elevation at all times, not just during the wet season. Thus, the canals overdrained large areas, including Golden Gate Estates, leaving
them especially vulnerable to fire during the dry season and droughts during the wet season.
The Golden Gate data and analysis report that the annual acreage consumed by fire increased eightfold after Golden Gate Estates was drained so as to alter the hydroperiod and lower the water table. The fires became more severe, eliminating the organic (humus) part of soils and thus discouraging post-fire, vegetative recolonization.
The replacement of natural drainage features with artificial drainage facilities dramatically altered natural hydroperiods and, in so doing, destroyed wetlands and wetlands habitat, encouraged saltwater intrusion, and degraded estuaries and eliminated marine habitat by altering the timing and amount of freshwater infusions on which commercially harvested fin fish, shellfish, and sport fish depend at some point in their life cycle.
The effect of artificial drainage facilities on water quality, water quantity, and hydroperiod adversely affected recharge of the surficial aquifer, on which the County depends for most of its drinking water. The surficial aquifer receives
90 percent of its recharge from rain and surface flow with direct infiltration from rainfall being the most important source of recharge of the water table aquifer, according to the Groundwater data and analysis.
As the Drainage data and analysis concede, artificial drainage facilities have reduced aquifer recharge, which is often best served during flood events when the drainage facilities are overwhelmed. Additionally, as the Groundwater data and analysis note, runoff-transported pollutants can enter the groundwater, just as they can enter surface waters.
The Groundwater data and analysis state that protection of natural groundwater recharge relies on land use restrictions that ensure that land uses do not change the recharge process in terms of timing, water quantity, or water quality.
The Groundwater data and analysis identify two factors as affecting timing and water quantity: covering recharge areas with impervious surfaces and overdraining recharge areas by canals. In terms of water quality, the Groundwater data and analysis warn of pollutants introduced directly into the water table aquifer by stormwater detention/retention facilities, sewage treatment percolation ponds and absorption fields, and septic systems.
Based on a formula developed by the Environmental Protection Agency that considers, among other things, water table elevation and soil permeability, the Groundwater data and analysis warn that County groundwater is highly sensitive to groundwater contamination. In particular, the Groundwater data and analysis recommend the investigation of possible groundwater contamination through the agricultural use of pesticides and
fertilizer and the residential use of septic tanks in the area of the East Golden Gate Wellfield. The Groundwater data and analysis recommend, among other things, land use controls around wellfields, areas of high transmissivity, and major hydrological flowways.
In light of the deleterious impacts of artificial drainage facilities on water quality, water quantity, and aquifer recharge, the Drainage data and analysis suggest that the drainage LOS standards address these three factors. The Drainage data and analysis state that it is "essential" that the stormwater management standards concerning water quality provide treatment levels "at least compatible with current state requirements. Drainage, page D-I-3. Regarding water quantity, the Drainage data and analysis state that the standards must provide adequate flood protection for developed areas and sufficient water to maintain aquifers, wetlands, and estuarine systems.
The Drainage data and analysis discuss the difficulties the County experienced in trying to set a drainage LOS. Historically inadequate systems compounded the problem. Developments permitted prior to 1977, including all of Golden Gate Estates, were designed only to protect against flooding in the event of the ten-year storm, and these developments have an inconsistent record in meeting even these relaxed standards. The County required post-1977 development to meet the more demanding
standards of the 25-year, 3-day storm event, and these developments have generally done so.
The Drainage data and analysis report that the County hired consulting engineers in 1989 to prepare the Stormwater Management Master Plan. Out of this work emerged LOS standards using water quality as a function of the storm event, water quantity, and the potential of the area to provide aquifer recharge. However, neither the Plan nor even the Drainage data and analysis disclose these drainage LOS standards.
The discussion of the drainage LOS standards does not focus extensively on basin issues as to water quantity. Another feature of a drainage LOS, the basin in which runoff is naturally found is important because drastic alterations of basin may alter the periodic, natural changes in salinity necessary to the health of the receiving estuaries. Due to the flatness of the topography, basins in the County naturally shift, depending on the location of rainfall and amount of rainfall compared to the capacity of the natural drainage features.
Roads that run along the barely perceptible ridge lines defining a basin change the dynamic of location and amount of rainfall compared to the capacity of the natural drainage feature, so as possibly to change the basin receiving the resulting runoff. Roads that cut across ridge lines have an obvious effect on receiving basins. Canals have similar effects on these basins.
Citing the results of the Stormwater Management Master Plan, the Drainage data and analysis list the ten major basins in the County. However, after listing these basins, the Drainage data and analysis note:
At this time, an aggressive stormwater management capital improvement project construction is not proposed. The intent is to respond to the will of the local citizens as they petition the Board of County Commissioners to design and construct stormwater management improvements through the creation of taxing and/or assessment districts.
The omission of the drainage LOS standards from the Plan (and, although not strictly relevant, even from the data and analysis) precludes an determination of the scope and effect of the County's decision not to schedule stormwater improvements until residents demand such public facilities. Nothing in the Plan allows the informed reader to learn whether the County's undisclosed drainage LOS standards have adequately blended the objective of natural-resource protection with the objective of flood control. Nothing in the Plan allows the informed reader to learn of the extent to which the County must apply these undisclosed drainage LOS standards to development, redevelopment, and unchanged land uses (i.e., retrofitting).
The effect of the omission of drainage LOS standards from the Plan is heightened by certain water-quality trends during the ten-year period ending in 1989, coupled with the
County's reduction in water-quality monitoring during the ensuing ten years.
Map LU-92 in the Conservation data and analysis identifies 24 "estuarine bays" from the Lee County line south to Everglades City. These bays include Clam Bay, which is just north and west of the terminus of Pine Ridge Road; Doctors Bay, which is immediately north of Naples; Naples Bay, which is immediately south of Naples and receives water from the Gordon River and Haldeman Creek; Rookery Bay, which is south of Naples about midway between Naples and Marco Island and receives water from Henderson Creek; and Faka Union Bay and Fakahatchee Bay, which are roughly midway between Marco Island and Everglades City.
According to the Conservation data and analysis, the worst water quality reported by the Department of Environmental Protection in a 1994 statewide assessment of water quality was the estuarine portion of the Gordon River, which violated water quality standards for conductivity and dissolved oxygen. Rated as "threatened or moderately impaired" in this study, Naples Bay violated water quality standards for conductivity. A portion of the Henderson Creek Canal violated water quality standards for conductivity and dissolved oxygen.
The Conservation data and analysis note that the County assessed available data collected from 1979 through 1989 and determined that, during this period, surface waters may have
experienced an increase in nutrients. Inland-water data indicate that nutrient levels (nitrogen, phosphorus, or both) increased from 1979 through 1989 in the Gordon River Extension, Henderson Creek, Main Golden Gate Canal, and Faka Union Canal. Although there are less estuarine nutrient data, the data for Clam Bay reveal a steep increase in nitrogen and a slower increase in phosphorus.
The sediments of numerous inland waterways contain organochlorine pesticides. Although polycyclic aromatic hydrocarbons are not widespread in estuarine sediments, they were detected among 80 percent of samples taken in Naples Bay in 1992. Among inland sediments, they are very high in the Gordon River Extension. Heavy metals are at very slightly elevated levels in urbanized estuaries, which include Naples Bay.
The Golden Gate data and analysis predict "substantial population increases" for Golden Gate Estates. However, the Golden Gate data and analysis indicate that only a 4 square-mile area is served by central sewer; the same area is the only area served by central water.
The Golden Gate data and analysis of the relevant drainage facilities report that the drainage basin for Golden Gate Estates is the 107 square-mile Golden Gate Basin and the
185.3 square-mile Faka Union Canal System Basin. The Faka Union Canal System Basin discharges into the Faka Union Bay, and the Golden Gate Basin appears to discharge into Naples Bay.
Given the role of drainage in preserving or restoring the health of bays and estuaries, maintaining or improving natural recharge of the aquifer on which the County depends for its drinking water, and maintaining or restoring viable wetlands habitat for a variety of terrestrial and marine wildlife and plant life, and the historic exacerbation of flooding and fire by poorly planned artificial drainage facilities, DCA has proved by a preponderance of the evidence that the data and analysis do not support the Plan amendments that repealed Golden Gate Policy
2.2.3 and replaced it with Golden Gate Policy 2.1.4, so as to restrict the coverage of pre-existing restrictions on site alterations that substantially impact the drainage of South Golden Gate Estates.
Issue 6
Conservation Objective 1.1 provides:
By August 1, 1994, the County will complete continue with 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. Species of special status are defined as species listed in the current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission.
Conservation Policies 1.1.1 and 1.1.2 respectively provide:
By August 1, 1989, appoint and establish operational procedures for Continue with using a Technical Advisory Committee to advise and assist the County in the activities involved in the development and implementation of the County Environmental Resources Management Program.
By the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto[,] incorporate the Goals, Objectives, and Policies contained within this Element into the County's land development regulations as interim environmental resources protection and management standards.
Conservation Objective 1.3 provides:
By August 1, 1994, complete Continue with the phased delineation, data gathering, management guidelines and implementation of the County Natural Resources Protection Areas (NRPA) program by implementing the Board- approved process for nominating potential areas for review. The purpose of Natural Resources Protection Areas will be to protect endangered or potentially endangered species (as listed in current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission) and their habitats.
Conservation Policy 1.3.1 specifies the components of the NRPA program. Specific requirements include identifying NRPAs on the Future Land Use Map (FLUM), establishing development standards applicable within NRPAs to maintain functioning natural resources and restore or mitigate natural resources within NRPAs that are already degraded, identifying an NRPA review process, and deferring development within NRPAs through purchase, tax incentives, and transfer of development rights.
Conservation Appendix D, which is part of the data and analysis, is devoted to Natural Resource Protection Areas (NRPAs). The issue is not what the County did or did not provide DCA during the review and adoption process. This historical fact is superseded by the opportunity presented to both sides to present data and analysis at the de novo hearing.
Conservation Appendix D states that the Board of County Commissioners approved on March 1, 1994, a process for identifying NRPAs and establishing management plans for NRPAs. The process requires initial Board approval before the process commences.
Appendix D identifies 33 criteria to be considered in designating NRPAs. Nearly all of the criteria involve environmental factors. The criteria represent a comprehensive range of environmental factors.
Appendix D notes that, on February 28, 1995, the Board of County Commissioners approved Clam Bay as a NRPA and directed staff to begin the preparation of a management plan for Clam Bay. Clam Bay is a wetland area within an approved development of regional impact.
Clam Bay was the site of a considerable mangrove die- off in 1992 and 1995. County staff appear to believe that there is a problem with flushing and possibly high water levels, as well, so the County is seeking a permit to dredge the pass.
Historically, Clam Pass was connected to Vanderbilt Pond to the north, but land development severed this connection.
Clam Bay is the only NRPA that the Board of County Commissioners has designated. DCA contends that the data show that the NRPA process does not adequately protect wetlands, wildlife, and wildlife habitat. Intervenors likewise argue that the NRPA is ineffective, and the County's ineffectual implementation of the NRPA program deprives Conservation Objective 1.3 of support from the data and analysis.
The issue of whether these two objectives and three policies are supported by data and analysis requires consideration of their purpose and the efficacy of the programs to be established to help attain these objectives and realize their purpose. Conservation Objective 1.1, with its policies, establishes the Environmental Resources Management Program, whose purpose is to identify, manage, and protect "properly, appropriately, and effectively" natural resources, including species of special status. Conservation Objective 1.3, with its policy, establishes the NRPA program, whose purpose is to protect endangered or potentially endangered wildlife and plant life.
The broader scope of the Environmental Resources Management Program is offset by its offer of only conditional protection, as disclosed by the three quoted adverbs. The highly conditional promise of Conservation Objective 1.1 means that this objective and its policies do not require much in the way of
supporting data and analysis. For this reason, DCA and Intervenors have failed to prove that Conservation Objective 1.1 and Policies 1.1.1 and 1.1.2 are not supported by data and analysis.
The focus of Conservation Objective 1.3 and Policy
1.3.1 is narrower--limited to endangered species and potentially endangered species--and its promise of protection is unconditional. A fair definition of potentially endangered species is threatened species and species of special concern, so this recommended order shall use the phrase, "listed species," to describe the species covered by Conservation Objective 1.3 and Policy 1.3.1.
In determining the extent to which Conservation Objective 1.3 and Policy 1.3.1 are supported by data and analysis, it is necessary to consider the County's role in providing habitat to listed species, any trends in wildlife habitat and listed species, the treatment of listed species by other Plan provisions, and the County's use of NRPAs.
In 1994, the Florida Game and Fresh Water Fish Commission published Closing the Gaps in Florida's Wildlife Habitat Conservation System (Closing the Gaps). This report divides Florida into geographic regions; Southwest Florida comprises Sarasota, Charlotte, Lee, Collier, Glades, and Hendry counties. Closing the Gaps cites this region as "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 . . .." Closing the Gaps, page 173.
Most prominent in Southwest Florida are the only stable panther population east of the Mississippi River; the only stable black bear population south of Interstate 4; the greatest populations of Audubon's crested caracara in the United States; core populations of sandhill cranes, swallow-tail kites, and burrowing owls; important foraging and nesting habitats for colonies of many species of wading birds; and favorable conditions for several species of tropical plants that are rare elsewhere in Florida.
Closing the Gaps states that most of the County hosts at least seven "focal species." "Focal species" are 40 species-- many of which are listed--selected for their role as indicators of natural communities or requirement of large areas for habitat. Closing the Gaps, page 8. Although most of this area is within Big Cypress and other publicly owned lands, it extends through Golden Gate Estates and into extreme west Collier County. A
land-cover map in Closing the Gaps shows that the largest contiguous area of cypress swamp occupies Golden Gate Estates.
Another map depicts this area as a large area of "strategic habitat" that runs to the north and northeast to link with strategic habitat running through central Hendry County and eventually to the western half of Glades County. Closing the
Gaps, page 172. "Strategic habitat" is intended to provide habitat to species "lacking adequate representation in current conservation areas." Closing the Gaps, page 7.
Closing the Gaps divides Collier County into two geographic areas for more detailed analysis. One area is north of Golden Gate Estates, reaching the Lee County line. The other area is west of Fakahatchee Strand and occupies South Golden Gate Estates and the remainder of Golden Gate Estates to the north.
The more northerly area consists of cypress swamp, hardwood swamp, dry prairie, and pineland and "represents one of the most important wildlife areas remaining in Florida." Closing the Gaps, page 174. This area includes Lake Trafford, which is the highest part of the County and the only area supplying relatively high, natural aquifer recharge, and provides strategic habitat for the Florida panther, Florida black bear, wood stork, and American swallow-tailed kite.
The more southerly area provides strategic habitat for the Florida panther, Florida black bear, red-cockaded woodpecker, and several rare wading birds that nest elsewhere. South Golden Gate Estates provides strategic habitat for the American swallow- tailed kite, southern bald eagle, eastern indigo snake, and several plant species. Central Golden Gate Estates provides strategic habitat for the American swallow-tail kite, red- cockaded woodpecker, gopher tortoise, eastern indigo snake, and several plant species.
Both the northerly and southerly areas provide the "largest contiguous blocks of high-quality habitat . . . outside of conservation areas" for Florida bears. Closing the Gaps, page
The County hosts the largest black bears in Florida and one of the largest groups of bears. Closing the Gaps asserts that bear habitat in the County "appears to be of the potentially greatest importance to black bears and many other rare species." Closing the Gaps, page 62.
Coastal Collier County also provides strategic habitat for numerous species, including the southern bald eagle, gopher tortoise, loggerhead turtle, least tern, snowy plover, Florida black bear (Rookery Bay), peregrine falcon (Rookery Bay and Cape Romano), yellow-crowned night heron, brown pelican, Florida burrowing owl, American oystercatcher, and Florida scrub lizard.
An aquatic mammal of prominence is the West Indian manatee, which frequents the waters of the County. The greatest number of citings throughout the year are in the Faka Union Canal and around Marco Island. During the winter months, the animals congregate in the Faka Union Canal.
Manatees are under considerable stress. According to Conservation data and analysis, the number of manatee deaths in the County was 71 in 1996, the last year for which data were available. This was 25 percent of the total manatee deaths recorded for the preceding 22 years and was five less than the total for the preceding five years.
The other large mammal under stress is the Florida panther. In 1993, the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Department of Environmental Protection, and National Park Service published Florida Panther Habitat Preservation Plan: South Florida Population (Panther Plan).
The purpose of the Panther Plan is to identify actions to assure the long-term preservation of habitats that are essential for maintaining a self-sustaining population of panthers in South Florida. Data indicate that a minimum self- sustaining population in this area is 50 adult panthers.
The reproducing South Florida panther population occupies only Collier, Dade, Hendry, and Lee Counties. Although estimates vary, approximately 30-50 adult panthers probably remain in the South Florida area. In 1990, an estimated 46 panthers (of all ages) roamed the Big Cypress basin. During the study period of 1979 through 1991, 46.9 percent of panther deaths were due to highway collisions, mostly along State Road 29 and Old Alligator Alley (State Road 84), which are both in Collier County.
Range demands of the panther are substantial. Males panthers require 180-200 square miles with minimal overlap with other males. Females require 75-150 square miles and tolerate overlapping territories with other females.
The vast area in public ownership represented by Big Cypress Preserve and Everglades National Park offer lower-quality habitat for the panther, which prefers drier land, as does the bear, although it is less demanding than the panther in terms of habitat type. The northern 53 percent of the South Florida panther range is in private ownership, but the higher soil fertility and forested habitat characteristic of this land allow it to accommodate over half of the adult panthers, who are healthier and more productive than their counterparts in the southern portion of the South Florida range. Partly for these reasons, the vast publicly owned lands can support only 9-22 of the adult panthers in South Florida.
Publicly owned lands in the South Florida range are probably at their limit in supporting panthers. The first two recommendations of the Panther Plan are to develop "site-specific habitat preservation plans" for land south of the Caloosahatchee River, which comprises 75 percent of known panther range and contains 39 of the 41 panthers studied between 1981 and 1991, and for land north of the Caloosahatchee River, which offers superior habitat that may in the future become more available for settlement by panthers.
Other Plan provisions address wildlife and wildlife habitat. Conservation Policy 1.3.2 is to continue management guidelines for wildlife and wildlife habitat, but the guidelines are deferred and relegated to the land development regulations.
Moreover, a County witness conceded at the hearing that staff was having difficult preparing these management guidelines.
Conservation Objective 6.1 is to prepare development standards for all important native habitats, but the Plan Amendments extended the deadline for doing so another six years, until June 1, 1998, and largely deferred and relegated to the land development regulations.
However, Conservation Objective 6.1 incorporates Policies 6.4.6 and 6.4.7 until the County prepares the development standards. For new residential developments greater than 2.5 acres in the Coastal Area or 20 acres in the coastal urban area, Policy 6.4.6 requires the retention of a minimum percentage of viable, naturally functioning native habitat. However, this policy is undermined by vagueness concerning "Coastal Area," "coastal urban area," and "viable, naturally functioning native habitat"; the emphasis on the preservation of sample habitats, rather than contiguous wildlife habitat; and the County's practice of allowing compliance with this requirement through total landclearing following by replanting. For all new development, Policy 6.4.7 addresses contiguous habitat, but only by encouraging, not requiring, preservation, and without specifying a minimum area to be preserved.
Conservation Policy 7.2 is to maintain the average annual number of deaths of manatees from boat collisions at 3.2,
although this is a small fraction of the total annual manatee deaths.
Conservation Policy 7.3.3 is to prepare management guidelines in the land development regulations to inform landowners of the proper ways to reduce disturbances to red- cockaded woodpeckers, Florida panthers, other listed species, eagle nests, and wood stork habitat. Pending the preparation of these land development regulations, Conservation Policy 7.3.4 is for the County to "evaluate and apply applicable recommendations" of two governmental agencies regarding the protection of listed species. Lastly, the County will designate unspecified portions of known panther habitat as Areas of Environmental Concern on the FLUM.
There is no explanation in the record why the County has designated only Clam Pass as an NRPA. However, the record does not support an inference that the NRPA program has had any effect whatsoever in addressing the needs of wildlife and habitat.
In 1993 and 1994, County staff recommended 10-12 areas as NRPAs, including Belle Meade, Cap Key Strand (which runs from Immokalee and Lake Trafford south to the Florida Panther National Wildlife Refuge), and South Golden Gate Estates. These areas, which the County declined to designate as NRPAs, provide considerably more wildlife habitat and more wildlife habitat of higher quality than does Clam Pass, whose designation seems to
reflect a reaction to mangrove dieoffs and possibly water quantity, but not habitat or even water quality.
Considering the County's role in providing crucial wildlife habitat to listed species, weak Plan provisions concerning wildlife and wildlife habitat, and ineffective utilization of the NRPA program (at least for the purpose of protecting wildlife habitat), DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 1.3 and Policy 1.3.1 are not support by data and analysis.
Issue 7
Conservation Objective 12.1 is:
Continue to Eencourage the undertaking of activities necessary to attain maintain by 1994, hurricane evacuation clearance time for a Category 3 storm at a maximum of 28 hours as defined by the 1987 1996 Southwest Florida Regional Planning Council Hurricane Plan Evacuation Study Update, and by 1999, 27.2 hours. Activities will include on-site sheltering for mobile home developments, increased shelter space, and maintenance of equal or lower densities of the Category 1 hurricane vulnerability zone Coastal high hazard area in the land use plan.
Conservation Policy 12.1.1 states:
Land use plan amendments in the Category 1 hurricane vulnerability zone Coastal high hazard area shall only be considered if such increases in densities provide appropriate mitigation to reduce the impacts of hurricane evacuation times. shall be re-evaluated within three years and may change to a density level consistent with the Future Land Use Element.
Conservation Objective 12.1 is not to maintain or reduce evacuation times; it is not even to encourage the maintenance of evacuation times. Objective 12.1 merely encourages activities that are necessary to maintain evacuation times. Additionally, Conservation Objective 12.1 refers to the misdefined Coastal High Hazard Area, as discussed in Issue 8.
These two flaws in Conservation Objective 12.1 mean that this objective has not responded to the Conservation data and analysis, including Conservation Appendix E, which discusses hurricane evacuation times.
DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 12.1 and Policy 12.1.1 are not supported by data and analysis and Objective 12.1 is inconsistent with a criterion to maintain or reduce hurricane evacuation times.
Issues 8 and 15
Following amendment, Conservation Policy 12.2.5 defines the Coastal High Hazard Area as the area "lying within the Category 1 Evacuation Zone as determined by the Emergency Management Director." The County amended the FLUM to depict the coastal high hazard area, as defined in Conservation Policy 12.2.5.
The "Category 1 Evacuation Zone as determined by the Emergency Management Director" omits areas within the category 1 hurricane zone, as established in the 1996 Southwest Florida
Regional Planning Council Hurricane Evacuation Study Update, which is the regional hurricane evacuation study applicable to the County.
DCA and Intervenors have proved by a preponderance of the evidence that Conservation Policy 12.2.5 and the conforming FLUM amendment reflect a Coastal High Hazard Area that is not the category 1 hurricane zone, as established by the regional hurricane evacuation study applicable to the County.
Issue 9
Conservation Objective 6.3 states:
A portion of the viable, naturally functioning transitional zone wetlands defined by State and Federal permitting requirements shall be preserved in any new non-agricultural development unless otherwise mitigated through the DER State and the ACOE permitting process and approved by the County.
Conservation Objective 6.3 does not state what portion of the transitional zone wetlands shall be preserved, nor does it define "viable, naturally functioning transitional zone wetlands." Each of these concepts--viable, naturally functioning, and transitional zone--requires definition. There is thus no way to evaluate the success of the policies under the objective or that attainment of this objective marks progress toward a stated goal.
DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 6.3 is not a specific,
measurable, intermediate end that is achievable and marks progress toward a goal.
Issue 10
Conservation Objective 7.3 states:
By January 1, 1992, The County shall continue to develop and implement programs for protecting fisheries and other animal wildlife by including measures for protection and/or relocation of endangered, threatened, or species of special concern of status.
The effect of the amendment of Conservation Objective
7.3 is to remove the deadline by which the County was to develop and implement programs to protect wildlife, including listed species. There is thus no way to evaluate the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal.
DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 7.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal.
Issues 11, 12, 13, and 14
Conservation Objective 9.4 is:
By September 30, 1989, the County shall establish The County shall implement the existing a local storage tank compliance program to protect ground and surface water quality including site inspections and information transfer.
Conservation Objective 9.5 is:
By August 31, 1989, the The County shall adopt implement construction, pretreatment,
monitoring, and effluent limit requirements of the Collier County Ground Water Protection an Ordinance regulating the use of septic tanks serving industrial and manufacturing activities.
Conservation Objective 10.6 is:
By August 1, 1990, tThe County shall continue to implement the Coastal Barrier and Beach System Management Program by conserving the habitats, species, natural shoreline and dune systems contained within the County coastal zone.
FLUE Policy 3.1.d is:
Protect potable water wellfields and aquifer recharge areas. This shall be accomplished through the creation and implementation of a wellfield protection ordinance. The ordinance shall establish cones of influence based on groundwater travel times, restrict land uses and activities within the cones of influence and establish development standards for those activities beyond the cones of influence which may endanger the wellfields and aquifer recharge areas based on their potential for pollution. The Groundwater Protection Ordinance shall be implemented to protect existing and future wellfields, natural aquifer recharge areas and groundwater resources through standards for development involving the use, storage, generation and disposal of hazardous waste products, disposal of sewage and effluent, stormwater management, earthmining, petroleum exploration, solid waste and other related aspects of land use and development within the mapped wellfield protection zones.
Groundwater Policies 1.2.1 and 1.2.2 are:
The [Groundwater Protection] Ordinance [to be adopted by August 1, 1989, under Groundwater Objective 1.2] will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future
regulated development according to procedures specified in the Ordinance to protect the County's ground water resources.
The [Groundwater Protection] Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance to provide an appropriate level of protection to sensitive recharge areas.
Conservation Objective 9.4 promises the implementation of a storage tank program that is contained in the land development regulations, which are not incorporated by reference into the Plan. Because these land development regulations are not themselves subject to the compliance determinations that are the subject of this case, Conservation Objective 9.4 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. This deferral and relegation to the land development regulations leaves no way of evaluating the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal.
The same deficiencies characterize Conservation Objectives 9.5 and 10.6, FLUE Policy 3.1.3, and Groundwater Policies 1.2.1 and 1.2.2, except that, for the policies, this deferral and relegation to the land development regulations leaves no way of identifying the way in which the County will conduct programs and activities to achieve identified goals.
DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objectives 9.4, 9.5, and 10.6, are
not specific, measurable, intermediate ends that are achievable and mark progress toward a goal.
DCA and Intervenors have proved by a preponderance of the evidence that FLUE Policy 3.1.d and Groundwater Policies
1.2.1 and 1.2.2 do not identify the way in which the County will conduct programs and activities to achieve identified goals.
Issue 15
Section 187.201, Florida Statutes, sets out the State comprehensive plan.
Section 187.201(8)(b)2 is to "[I]dentify and protect the functions of water recharge areas and provide incentives for their conservation."
In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Groundwater Objective 1.2 and Policies 1.2.1-1.2.4 and FLUE Policy 3.1.d.
Section 187.201(8)(b)9 is to "[p]rotect aquifers from depletion and contamination through appropriate regulatory programs and through incentives."
In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan,
construed as a whole: Conservation Objective 9.5, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, and FLUE Policy 3.1.d.
Section 187.201(8)(b)10 is to "[p]rotect surface and groundwater quality and quantity in the state."
In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 6.3, FLUE Policy 3.1.d, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4.
Section 187.201(8)(b)12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state."
In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, FLUE Policy 3.1.d, Groundwater Policies 1.2.1 and 1.2.2, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4.
Section 187.201(9)(b)4 is to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development."
In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3, 7.3, 9.4, 9.5, and 10.6 and Policy 12.2.5; FLUE Policy 3.1.d; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4.
Section 187.201(9)(b)9 is to prohibit development that disturbs coastal dune systems.
In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 10.6 and Policy 12.2.5.
Section 187.201(10)(b)1 to "[c]onserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values."
In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, and
9.5 and Policy 1.3.1; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4.
Section 187.201(10)(b)3 is to "[p]rohibit the destruction of endangered species and protect their habitats."
In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, 9.5, and 10.6 and Policy 1.3.1; and Golden Gate Policy 2.1.4.
Section 187.201(10)(b)7 is to "[p]rotect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value."
In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3 and 9.5, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4.
Section 187.201(26)(b)7 is to ensure the development of local government comprehensive plans that implement and reflect state goals and policies and that address issues of particular concern to a region.
In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan,
construed as a whole: Conservation Objectives 1.3, 6.3, 7.3
10.6, and 12.1 and Policies 1.3.1, 12.1.1, and 12.2.5; Golden Gate Policy 2.1.4; and ICE Policy 1.2.6.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.57(1) and 163.3184(10), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Section 163.3184(10) provides that, in cases in which DCA has issued a notice of intent to find a plan or plan amendment not in compliance, DCA bears the burden of proving by a preponderance of the evidence that the plan or plan amendment is not in compliance, except that, on matters involving internal inconsistency, that standard of proof is beyond fair debate.
Section 163.3184(10) authorizes the participation of intervenors, as "affected persons" defined in Section 163.3184(1)(a). By stipulation, all of the parties are affected persons and have standing to participate in this case.
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, Florida Administrative Code, where such rule is not inconsistent with chapter 163, part II.
Section 163.3177(10)(a) provides:
The Legislature finds that in order for the department to review local comprehensive plans, it is necessary to define the term "consistency." Therefore, for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans.
Section 163.3177(8) provides in part: All elements of the comprehensive plan,
whether mandatory or optional, shall be based
upon data appropriate to the element involved. . . .
Section 163.3177(10)(e) states in part:
It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data. . . .
Rule 9J-5.005(2)(a) provides in part:
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means
to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. . . .
For the reasons stated in the findings of fact, DCA and Intervenors have proved that the Plan Amendments are inconsistent with various criteria of Chapters 163 and 9J-5.
It is
RECOMMENDED that the Administration Commission enter a final order determining that the Plan Amendments are not in compliance.
DONE AND ENTERED this 19th day of March, 1999, 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
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1999.
COPIES FURNISHED:
Shaw P. Stiller Colin M. Roopnarine
Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Thomas W. Reese
2951 61st Avenue South
Saint Petersburg, Florida 33712
Marjorie M. Student Rodney C. Wade
Assistant County Attorneys 3301 East Tamiami Trail Naples, Florida 34112
Richard D. Yovanovich Roetzel & Andress
850 Park Shore Drive Naples, Florida 34103
Donna Arduin, Secretary Executive Office of the Governor 1601 Capitol
Tallahassee, Florida 32399-0001
David Schwartz, Esquire Executive Office of the Governor
209 Capitol
Tallahassee, Florida 32399-0001
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.
| Issue Date | Proceedings |
|---|---|
| Mar. 29, 2004 | Final Order (filed via facsimile). |
| Mar. 19, 1999 | Recommended Order sent out. CASE CLOSED. Hearing held 05/04-08/98. |
| Dec. 21, 1998 | Order Granting Joint Motion for Extension of Time to Respond to Order sent out. (motion granted) |
| Dec. 18, 1998 | (Petitioner) Response to Notice of Taking Office Notice filed. |
| Dec. 14, 1998 | Joint Motion for Extension of Time to Respond to Order (filed via facsimile). |
| Dec. 11, 1998 | The Federation and Collier Audubon`s Opposition to Taking Judicial Notice of Proposed Remedial Amendments (filed via facsimile). |
| Nov. 25, 1998 | Order to Show Cause and Notice of Taking Official Notice sent out. (status on settlement negotiations due by 12/15/98) |
| Nov. 24, 1998 | Notice of Filing Missing Pages of Joint Proposed Recommended Order of Collier County, Florida and Collier County School Board (filed via facsimile). |
| Aug. 03, 1998 | FWF and Collier Audubon`s Proposed Recommended Order filed. |
| Aug. 03, 1998 | Department of Community Affairs` Proposed Recommended Order filed. |
| Aug. 03, 1998 | Joint Proposed Recommended Order of Collier County, Florida and Collier County School Board; Cove Letter (filed via facsimile). |
| Jul. 29, 1998 | (Respondent) Notice of Mediation (filed via facsimile). |
| Jul. 17, 1998 | Order Granting The Joint Motion for Extension of Time to File Proposed Recommended Orders sent out. (PRO`s due by 8/3/98) |
| Jul. 14, 1998 | FWF and Collier Audubon`s Response to the Joint Motion for Extension of Time to File PROs (filed via facsimile). |
| Jul. 10, 1998 | Notice of Filing Transcript; (5 Volumes) Transcript filed. |
| Jul. 08, 1998 | Joint Motion for Extension of Time to File Proposed Recommended Orders (filed via facsimile). |
| May 21, 1998 | (Respondent) Exhibits (1 box/tagged) filed. |
| May 04, 1998 | Exhibits filed. |
| May 04, 1998 | Joint Motion for Continuance filed. (filed with Judge as hearing) |
| May 04, 1998 | CASE STATUS: Hearing Held. |
| May 01, 1998 | Petitioner Department of Community Affairs` Notice of Prefiling Testimony (filed via facsimile). |
| May 01, 1998 | Petitioner Department of Community Affairs` Notice of Prefiling Testimony (filed via facsimile). |
| Apr. 30, 1998 | Respondent Collier County, Florida`s, and Intervenor, Collier County Public Schools Motion for Summary Final Order or, in the Alternative Motion to Dismiss (filed via facsimile). |
| Apr. 30, 1998 | Petition of Elfra Madilus for Leave to Intervene as Petitioner (filed via facsimile). |
| Apr. 29, 1998 | FWF and Collier Audubon`s Opposition to Motion for Formal Mediation (filed via facsimile). |
| Apr. 29, 1998 | Order Granting Petition to Intervene (for judge signature); Cover Letter filed. |
| Apr. 29, 1998 | Petitioner Department of Community Affairs` Response to Motion for Formal Mediation (filed via facsimile). |
| Apr. 27, 1998 | (Respondent) Motion to Withdraw Filing; (Respondent) Motion for Formal Mediation; Order Granting Motion for Formal Mediation filed. |
| Apr. 24, 1998 | Order Granting Motion for Leave to Submit Prefiled Expert Testimony sent out. |
| Apr. 24, 1998 | Motion for Formal Mediation (filed via facsimile). |
| Apr. 23, 1998 | (Collier County) Amended Petition to Intervene (filed via facsimile). |
| Apr. 22, 1998 | Petitioner Department of Community Affairs` Motion for Leave to Submit Prefiled Expert Testimony (filed via facsimile). |
| Apr. 22, 1998 | Order Denying Motion Requesting the Hearing Officer Order a Prehearing Conference and Prehearing Stipulation sent out. |
| Apr. 21, 1998 | Petitioner Department of Community Affairs` Response to Collier County School Board`s Petition to Intervene (filed via facsimile). |
| Apr. 21, 1998 | Order Denying Joint Motion for Continuance sent out. |
| Apr. 21, 1998 | (2) Respondent Collier County`s Notice of Service of First Set of Interrogatories and Request for Production of Documents filed. |
| Apr. 20, 1998 | (Petitioner) Notice of Taking Depositions filed. |
| Apr. 20, 1998 | (Collier County School Board) Petition to Intervene (filed via facsimile). |
| Apr. 20, 1998 | Respondent Collier County`s Motion for Requesting The Hearing Officer Order A Prehearing Conference and Prehearing Stipulation filed. |
| Apr. 10, 1998 | FWF and Collier Audubon`s Opposition to Motion for Continuance, and FWF and Collier Audubon`s Section 163.3189 (3), Fla. Stat. Request for Expeditious Hearing filed. |
| Apr. 08, 1998 | Joint Motion for Continuance; Order on Joint Motion for Continuance (for judge signature) filed. |
| Apr. 06, 1998 | Petitioner Department of Community Affairs` Reply to FWF and Collier Audubon`s Opposition to Motion for Continuance and Request for Expeditious Hearing (filed via facsimile). |
| Mar. 24, 1998 | (Colin Roopnarine) Notice of Appearance of Co-Counsel for Department of Community Affairs filed. |
| Mar. 11, 1998 | Order Granting Motion for Leave to Intervene sent out. (for Florida Wildlife Federation) |
| Mar. 04, 1998 | Order Granting Motion for Leave to Intervene sent out. (for Collier County Audubon Society, Inc.) |
| Feb. 25, 1998 | Respondent Collier County`s Response to Motion for Leave to Intervene as Petitioner-In-Intervention by Collier County Audubon Society, Inc. filed. |
| Feb. 25, 1998 | Respondent Collier County`s Response to Motion for Leave to Intervene as Petitioner-In-Intervention by Florida Wildlife Federation filed. |
| Feb. 23, 1998 | Collier County Audubon Society, Inc.`s Motion for Leave to Intervene as Petitioner-In-Intervention filed. |
| Feb. 23, 1998 | Notice of Hearing sent out. (hearing set for May 4-8, 1998; 12:00pm; Naples) |
| Feb. 17, 1998 | Florida Wildlife Federation`s Motion for Leave to Intervene as Petitioner-In-Intervention filed. |
| Feb. 16, 1998 | Respondent Collier County`s Answer to Petition of the Department of Community Affairs filed. |
| Jan. 30, 1998 | Letter to S. Stiller from R. Wade Re: Oral Agreement filed. |
| Jan. 22, 1998 | Notification Card sent out. |
| Jan. 14, 1998 | Petition of the Department of Community Affairs; Notice of Intent; Statement of Intent filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 22, 1999 | Agency Final Order | |
| Mar. 19, 1999 | Recommended Order | Evaluation and Appraisal Report plan amendments are not in compliance. |
