STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS

ROBERT J. STARR; BETTY L. BRENNEMAN; and SUZANNE NEYLAND.

Petitioners.

vs. DOAH Case No. 98-0449GM

DEPARTMENT OF COMMUNITY AFFAIRS and CHARLOTTE COUNTY, FLORIDA,

Respondents.

/ JOHN G. COLUMBIA; DANIEL R. FLETCHER; EUGENE J. HALUSHAK;

and JOHN L. HARMON,

Petitioners,

vs. DOAH Case No. 98-0701GM

DEPARTMENT OF COMMUNITY AFFAIRS and CHARLOTTE COUNTY, FLORIDA,

Respondents.

/ RHONDA JORDAN,

Petitioner,

vs. DOAH Case No. 98-0702GM

DEPARTMENT OF COMMUNITY AFFAIRS and CHARLOTTE COUNTY, FLORIDA,

Respondents.

/

EUGENE PLUMMER,

Petitioner,

vs. DOAH Case No. 98-1634GM

DEPARTMENT OF COMMUNITY AFFAIRS and CHARLOTTE COUNTY, FLORIDA,

Respondents.

/

FINAL ORDER

This master was considered by the Secretary of the Department of Community Affairs (the "Department") following receipt and consideration of a Recommended Order issued on February 11, 2000 by Administrative Law Judge Robert E. Meale of the Division of Administrative Hearings. A copy of the Recommended Order is attached as Exhibit A.

I. BACKGROUND

This matter involves challenges pursuant to § 163.3184(9), Florida Statutes, to comprehensive plan amendments adopted by Charlotte County (the "County").

In 1993, the County began preparing its Evaluation and Appraisal Report ("EAR") as required under § 163.3191, Florida Statutes. The County completed its EAR in 1995, and the Southwest Regional Planning Council subsequently determined the Report to be legally sufficient. Id.; Rule 9J-11.018, Fla.

Admin. Code. Between 1995 and 1997, the County conducted 115 public meetings for the purpose of rewriting its then comprehensive plan. The County established the Charlotte Assembly to re-write the County's comprehensive plan. The Assembly worked on the project from October 1996 through the summer of 1997. On March 18,1997, the County transmitted its proposed plan amendments-essentially a new plan-to the Department which the Department processed as plan amendments. § 163.3184(9), Fla. Stat. The plan amendments were assigned DCA No. 97-ER1 and will hereinafter referred to as the "97-Plan Amendment." The Department reviewed the 97-Plan Amendment and issued its objections, recommendations and comment report. The

County Commission adopted the plan amendments on October 7,1997 pursuant to County Ordinance Nos. 97-95 to 97-104. On December 4, 1997, the Department published its Notice of Intent to find the 97-Plan Amendment to be "in compliance" pursuant to §§ 163.3184(1)(b) and 163.3184(9), Florida Statutes.

Following the publication of the Notice of Intent, four petitions for formal administrative hearing were filed on behalf of various residents and citizen groups challenging the Department's in compliance finding. The petitions were filed by those parties styled above and will be referred to as the "Starr Group," the "Columbia Group," "Jordan," and "Plummer" (references to Plummer will also include the Historical Knights Building, Inc. which the ALJ determined to be a co-Petitioner along with Plummer). The four petitions were referred to the Division of Administrative Hearing to conduct a formal hearing and were assigned to Administrative Law Judge Robert E. Meale (the "ALJ"). The four petitions were subsequently consolidated for purposes of the formal hearing.

The formal hearing began on June 1,1998. At the beginning of the hearing and prior to taking testimony, the ALJ, sua sponte, over the objections of Respondents, permitted the Starr Group and Plummer to restate their legal theories in their respective petitions so as state a claim under Chapter 163, Florida Statutes. See Tr., at pp. 42-53 (Starr Group); 165-66 (Plummer). The formal hearing took ten days during a five month span and concluded on October 23, 1998. A transcript of the formal hearing was prepared and filed with the ALJ. References to the hearing transcript will be as "Tr., at p. ."

The ALJ issued the Recommended Order on February 11, 2000. References to specific paragraphs of the Recommended Order will be as "RO ¶ ."

The ALJ concluded in the Recommended Order that the 97-Plan Amendment did not properly address and identify historic resources and "that a plan requirement of mandatory water connections to central water, as applied to the Don Pedro island chain, is inconsistent with the requirements of supporting data and analysis and internally inconsistent with numerous other plan provisions tending to discourage urban sprawl," RO ¶ 285- 86, and that these inconsistency findings resulted in a determination that the 97-Plan Amendment is not in compliance, RO ¶ 287. The ALJ requested that this matter be submitted to the Administration Commission for final agency action.

The Columbia Group, the County, and the Department timely filed exceptions to the Recommended Order. The Starr Group, Jordan and Plummer did not file any exceptions. The Department timely filed responses to the Columbia Group's exceptions.

II. BURDEN OF PROOF

Petitioners have the burden of proof, as to their respective petitions, in these administrative proceedings. Young v. Department of Community Affairs, 625 So. 2d 831, 833-35 (Fla. 1993). Findings of fact shall be based upon a preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

Further, where the Department issues a notice of intent to find a local government's comprehensive plan or plan amendment 'in compliance,' and an administrative petition challenging the plan or plan amendment is filed-as the various petitioners did in this case-the local plan or plan amendment "shall be determined to be in compliance if the local government's determination is fairly debatable." § 163.3184(9)(a), Fla. Stat. (1999); see City of Jacksonville v. Wynn, 650 So. 2d 182, 185 (Fla. 1st DCA 1995) ("Thus, in cases where the Department of Community Affairs and the local government agree on the plan's compliance with the Act, the burden of proof upon a contestant in the administrative forum is quite strict.").

III.

ROLE OF THE DEPARTMENT

After the issuance of the Recommended Order, the Department assumes two functions in this matter. The attorney and staff who advocated the Department's position throughout the formal proceedings continue to perform that function by reviewing the Recommended Order and filing exceptions and responses to exceptions urging the Department to find the plan amendments in compliance. For ease of reference, the Department, in its capacity as a litigant below, including its advocacy of exceptions herein, will hereinafter be referred to as "DCA."

The other role is performed by myself, as Secretary of the Department, and agency staff who took no part in the formal proceedings, and who have reviewed the entire record, the Recommended Order, and the exceptions and responses thereto.

Based upon that review, I must either follow the ALJ's recommendations in this case finding that the 97-Plan Amendment

is "not in compliance" and submit the Recommended Order to the Administration Commission for final agency action, or determine that the 97-Plan Amendment is "in compliance" and issue a final order as final agency action. §1 63.31 84(9)(b), Fla. Stat.

For ease of reference, the Department, in its capacity to review and rule on the exceptions and determine whether to forward this cause to the Administration Commission for final agency action or issue a final order itself will hereinafter be referred to as the "Department."

IV. STANDARD OF REVIEW

The Administrative Procedure Act, codified in Chapter 120, Florida Statutes, requires agencies to accept the ALJ's findings of fact and conclusions of law, except under certain limited circumstances.

Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

§120.57(1)(1), Fla. Stat. (1999). The Department cannot re- weigh the evidence considered by the ALJ and cannot reject findings of fact made by the ALJ unless there is no competent substantial evidence in the record to support the findings.

Id.; see, e.g., Schrimsher v. School Board of Palm Beach County, 694 So.2d 856, 860 (Fla. 4th DCA), rev. denied, 703 So.2d 477 (Fla. 1997); Smith v. Department of Health and Rehabilitative Services, 555 So. 2d 1254, 1255 (Fla. 3rd DCA 1989); Heifetz v.

Department of Business Regulation, 475 So. 2d 1277, 1281-82 (Fla. 1st DCA 1985). In respect to what constitutes competent substantial evidence, the Florida Supreme Court stated: "Competent substantial evidence is 'such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred [or] . . . such relevant evidence as a reasonable mind would accept to support a

conclusion.'" Duval Utility Co. v. Florida Public Service Commission, 380 So. 2d 1028,1031 (Fla. 1980) (quoting De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)).

The Department also has limited authority to reject or modify the ALJ's conclusions of law:

The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction When

rejecting or modifying such conclusion of law . . . the agency must state with particularity its reasons for rejecting or modifying such conclusion of law and

must make a finding that its substituted conclusion of law . . . is as or more reasonable than that which was rejected or modified.

§120.57(1)(1), Fla. Stat. (1999); see Pillsbury v. Department of Health and Rehabilitative Services, 744 So. 2d 1040, 1041-42 (Fla. 2nd DCA 1999). Further, the label assigned to a statement made by the ALJ in the recommended order is not dispositive as to whether that statement is a conclusion of law or a finding of fact. See,. e.g., Pillsbury, 744 So. 2d at 1041; Kinney v.

Department of State, 501 So. 2d 129, 132 (Fla. 5th DCA 1987). It is the true nature and substance of the ALJ's statement that controls an agency's authority to reject a finding of fact or

modify a conclusion of law. See J. J. Taylor Companies, Inc. v. Department of Business and Professional Regulation, 724 So. 2d

192 (Fla. 1st DCA 1999).

V.

RULINGS ON COLUMBIA GROUP's EXCEPTIONS

The Columbia Group filed three separate sets of exceptions dated February 23, 200O, February 25, 2000, and March 2, 2000, which are addressed in turn.

Columbia Group's exceptions dated February 23, 2000

Petitioner Columbia Group moved for default against the County prior to the formal hearing in this cause on the grounds that the County did not timely file an answer to their petition. The ALJ denied their motion for default. The Columbia Group also served the County with interrogatories and requests for

admissions prior to the formal hearing. The interrogatories requested that the County provide them with a list of the Counts experts and the nature of their testimony. On the first day of the hearing, the Columbia Group filed a motion in limine requesting that the County's experts be precluded from testifying because the County did not promptly respond to their expert interrogatories. At the commencement of the formal hearing, the ALJ denied the Columbia Group's motion in limine.

The Columbia Group now takes exception to the ALJ's denial of both motions. In respect to the Columbia Groups' motion for default, pursuant to the Florida Uniform Rules of Procedure for administrative hearings, Chapter 28-106, Fla. Admin. Code, the County was not required to file an answer to the administrative petitions in this case. Rule 28-106.203, Fla. Admin. Code. It further appears from the record that the ALJ afforded the Columbia Group an opportunity to seek exclusion of each expert at the time they were called, Tr., at pp. 109-10, but they thereafter failed to do so or otherwise establish prejudice.

The Columbia Group's exceptions dated February 23, 1999 are DENIED.

Columbia Group's exceptions dated February 25, 2000

The materials submitted to the Department by the Columbia Group and dated February 2S, 2000 purport to be additional exceptions to the Recommended Order. However, the Columbia Group did not identify any specific paragraphs or portions of the Recommended Order in which they take exception, but rather argued that the County failed to follow the public sentiment in adopting a mandatory sewer and water utility program and citizens should not be forced to pay to connect to central utilities. In any event, the matters raised by the Columbia Group appear to be outside of the issues considered by the ALJ, and to the extent the Columbia Group is seeking to add findings of fact to the Recommended Order, this is beyond the Department's authority under § 120.57(1), Florida Statutes, wherein agencies may only reject or modify findings of fact (and then only under certain limited conditions).

The Columbia Group's exceptions dated February 2S, 2000 are DENIED.

Columbia Group's exceptions dated March 2, 2000

These materials are entitled "Addendum to Plaintiff's Statement of Exceptions Dated 2/25/00 To The Recommended Order."

The Columbia Group sought to depose the County Attorney and Assistant County Attorney which the ALJ denied. The Columbia Group also sought to introduce into evidence two letters from an attorney, George H. Nickerson, Jr., dated April 13, l995 and May 15, l995, respectively. The ALJ did not admit these letters into evidence. The Columbia Group alleges that they have been prejudiced by not having these letters admitted into evidence and request that they be added to the record. However, this filing, on its face, does not establish that the ALJ abused his discretion in denying the admission of these letters. Further, to the extent that the Columbia Group is seeking to add findings of fact, this is beyond the authority of the Department.

Finally, the balance of the Columbia Group's assertions fail for lack of specificity to the Recommended Order.

The Columbia Group's exceptions dated March 2, 2000 are DENIED.

VI.

RULINGS ON COUNTY's AND DCA's EXCEPTIONS

The County and DCA filed substantially similar exceptions to the Recommended Order and thus will be discussed together. First, the County and DCA respectively assert that the ALJ erred in finding that Plummer (and the Historical Knights Building, Inc.) have standing as an "affected person" under § 163.3184(1)(a), Florida Statutes. Second, the County and DCA assert that the ALJ's findings of facts regarding those policies in the 97-Plan Amendment which require existing and newly developed properties to connect to central water, as applied solely to the Don Pedro island chain, were based upon improvident inferences guised as findings of fact, and not upon competent substantial evidence.

Countv's and DCA's exceptions to paragraphs 48-60, 61-67, 164- 171, 216, 217-223, 252-261, and 286 of the Recommended Order

The primary issue raised by Respondents in this group of exceptions is whether the ALJ erred in finding that Plummer was an "affected person" pursuant to § 163.3184(a), Florida Statutes, for purposes of jurisdictional standing.

A.

Additional background

Plummer was the president and majority shareholder of the Historical Knights Building, Inc. during the relevant periods here. RO ¶ 48. The company owned the Motts Willis building located in Charlotte County. RO ¶¶ 48-50. The County, through its Code Enforcement Board, sought to have the Motts Willis building torn down as an unsafe structure. RO ¶¶ 54-55 and 59. Plummer attended and testified at the County's Code Enforcement Board hearings regarding the proposed demolition of the Motts Willis building. RO ¶ 52. The Code Enforcement Board hearings on this matter ended in 1996. Id. The County transmitted the 97-Plan Amendment to the Department on March 18,1997, RO ¶ 46, and adopted it on October 7, 1997, id. Prior to the formal hearing in this matter, the County demolished the Motts Willis building. RO ¶ 59. At the hearing, Plummer alleged that the 97-Plan Amendment did not adequately identify and protect historic structures and the ALJ agreed. RO ¶¶ 60, 216, 286.

B.

Section 163.3184(a), Florida Statutes

In 1985, the Florida Legislature passed the Local Government Comprehensive Planning and Land Development Regulation Act, codified at Chapter 163, Part II, Florida Statutes (the "Act"), which substantially changed the state's role over growth management and land-use matters. As part of the Act, the Legislature provided that certain "affected persons," as defined therein, could challenge a local government's adoption of a comprehensive plan or plan amendment. "Affected persons,"

includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that the plan or plan amendment will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction. Each

person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment.

§ 163.3184(1)(a), Fla. Stat.; see St. Joe Paper Co. v. Department of Community Affairs, 657 So. 2d 27 (Fla. 1st DCA 1995) (discussing "affected persons" in the context of standing), rev. denied, 667 So. 2d 774 (Fla. 1996).

In the instant matter, in order for anyone to establish standing as an affected person to challenge the 97-Plan Amendment, he or she would have had to [i] have submitted oral or written comments, recommendations, or objections to the local government [ii] between March 18, 1997 and October 7, 1997. The ALJ found that all of these elements were met and that Plummer (including the Historical Knights Building, Inc) have standing. RO ¶¶ 54-60 and 216. The County and DCA respectively argue that none of these elements have been met and the ALJ's findings of fact in support of these elements are unreasonable inferences, not supported by competent substantial evidence, and contrary to the essential requirements of law. The timing and sufficiency elements will be analyzed in turn.

C.

Timing analysis

The first sub-issue is whether the ALJ erred in finding Plummer's remarks to the local government were made within the requisite time frame. At the outset of this analysis, the Department is constrained from rejecting or modifying any finding of fact unless there is absolutely no competent substantial evidence in the record, based upon a complete review thereof, to support said finding or the finding does not comply with the essential requirements of law. § 120.57(1)(1), Fla.

Stat.; see, e.g., Schrimsher, 694 So. 2d at 860; Smith, 555 So. 2d at 1255. Consequently, if there is any direct evidence in the record to support a finding of fact made by the ALJ as the trier of fact, or if the finding is based upon any reasonable inference derived from the direct evidence, then the Department must affirm said finding even if it disagrees with it. See

Pillsbury, 744 So. 2d at 1042. Here, the ALJ specifically found that

[t]he County received no document from Plummer or The Historical Knights Bldg, Inc., containing objections, recommendations, or comments concerning the plan during the review and adoption period, which was from March 18 to October 7, 1997. Plummer never personally addressed the County Commission during this period, nor any other earlier period, concerning the preservation of the Mott Willis Building.

RO ¶ 53. The ALJ then proceeded to find that Plummer's remarks were timely: "the preponderance of the evidence supports the finding that, in the months immediately preceding the demolition of the Mott Willis Building, including the period between March

18 and October 7, 1997, Plummer presented to the Code Enforcement Board objections, recommendations, and comments concerning the imminent demolition of this building." RO ¶ 54. However, in the ALJ's ensuing analysis of whether Plummer's remarks were sufficient, the ALJ limited his analysis to only those remarks made to the Code Enforcement Board: "The first factual question is whether the objections, recommendations, or comments that Plummer submitted to the Code Enforcement Board were effectively submitted to the local government." RO ¶ 57 (emphasis added); accord RO ¶ 58.

Even assuming that Plummer testified at every Code Enforcement Board hearing regarding the demolition of the Motts Willis Building, the ALJ's finding of fact in paragraph 54 that Plummer's remarks to the Board were timely is inconsistent with the ALJ's earlier finding that the Code Enforcement Board hearings ended in 1996, RO ¶ 52 (citing to Tr., at p. 180).

Thus, if the Code Enforcement Board hearings ended in 1996, RO ¶ 52, and Plummer never testified or appeared before the County Commission at any time, RO ¶ 53, and the County did not receive any written comments from Plummer, id., then there appears to be no competent substantial evidence that Plummer made any objections, recommendations or comments between March 18, 1997 and October 7, 1997. Moreover, the ALJ's finding that Plummer timely made comments to the County is further contradicted by the ALJ's subsequent finding "that Plummer was unaware of the plan-adoption process that was underway while he was trying to preserve the Mott Willis Building from demolition . . . and he would have been a likely proponent of stronger historical

provisions in the present plan, had he known that the planning process was underway." RO ¶ 55 (emphasis added).

The Department is charged in this case with reviewing the entire record and making a determination of whether to adopt, modify or reject the ALJ's various recommended findings of fact and conclusions of law in accordance with the standards of review set forth in § 120.57(1)(1), Florida Statutes. The Department is further charged under §163.3184(9)(b), Florida Statutes, with making the ultimate determination of whether to issue a final order finding the plan or plan amendment in compliance as final agency action or to submit the Recommended Order to the Administration Commission. Thus, in determining whether to adopt, modify, or reject recommended findings of fact, as previously stated, the Department cannot re-weigh the evidence or give more credibility to one inference over a competing inference, e.g., Heifetz, 475 So.2d at 1281; however, any inference propounded by the ALJ as a finding of fact must be one that can be "reasonably inferred," see Duval Utility Co.,

380 So.2d at 1031, Goss v. District School Board of St. Johns County, 601 So. 2d 1232, 1234 (Fla. 5th DCA 1992) (the ALJ may "draw permissible inferences from the evidence"). It is the rule of law in this state "that an order which bases an essential finding or conclusion solely on unreliable evidence should be held insufficient," Florida Rate Conference v. Florida Railroad and Public Utilities Commission, 108 So.2d 601,607 (Fla. 1959), and that competent substantial evidence may be not be based upon mere surmise, conjecture or speculation, id., nor upon the pyramiding of inferences, Tropical Park, Inc. v. Ratliff, 97 So.2d 169, 177 (Fla. 1957) (Hobson, J. concurring) ("We know of no rule where circumstantial evidence is relied upon which permits guess predicated upon guess or conjecture upon conjecture."). Here, the Department could not find any competent substantial evidence-whether direct evidence or such evidence upon which a reasonable inference could be inferred from-based upon a review of the entire record herein, including a detailed review of Plummer's testimony (Tr., at pp. 150-80) and supporting exhibit (Plummer's Exhibit 1, Tr., at p. l 64), of where Plummer made any oral or written comments, recommendations, or objections to the County regarding the 97- Plan Amendment between March 18,1997 and October 7, 1997. Accordingly, the ALJ erred in finding (see RO ¶¶ 54, 59-60, and

216) that Plummer mace such comments, recommendations or objections within the time period specified by § 163.3184(1)(a), Florida Statutes. See Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 119-22 (Fla. 1st DCA 1989) (court overturned administrative order predicated

on findings of fact which were not supported by competent substantial evidence but rather upon inferences and speculation).

D.

Sufficiency analysis

The second sub-issue is whether Plummer's remarks and criticisms to the Code Enforcement Board were sufficient to satisfy the "affected person" test in § 163.3184(1)(a), Florida Statutes. This issue will be analyzed independent of the timing issue, supra, and focuses on whether the ALJ correctly interpreted § 163.3184(1)(a), Florida Statutes, as applied to the sufficiency of Plummer's remarks.

Here, the ALJ found that Plummer's remarks to the Code Enforcement Board were sufficient to constitute "objections, recommendations, and comments concerning the imminent demolition of this building . . . included a claim that the [Code Enforcement] Board, using the power of the County, was proposing the demolition of the building in violation of provisions of the former comprehensive plan." RO ¶ 54. The ALJ went on to find that the Code Enforcement Board was an agent or subdivision of the County and that any comments or criticisms Plummer made to the Board which might implicate the historical resources component of the County's comprehensive plan were sufficient to bring Plummer under the "affected person" definition and thus to confer standing. RO ¶¶ 59-60 and 216. The ALJ stated:

Unaware of the plan-adoption process then underway, Plummer clearly did not offer any comments directly on the proposed plan.

However, his objections, recommendations, and comments in defense of the Mott Willis Building were clearly germane to the comprehensive planning process, especially as it applied to the County's treatment of its historic resources. Plummer's objections, recommendations, and comments focused narrowly on the single issue of one important historic resource, at least one pertinent provision of the former plan protecting historic resources, and the adequacy of the County's commitment to the preservation of one of its most distinctive historic resources. The ensuing destruction

of this historic resource, although possibly justified under the facts (which were not litigated at the final hearing in these cases), nonetheless reinforces the urgency of Plummer's repeated requests that the County address squarely the issue of the preservation of its historic resources and the adequacy of its present policies and its implementation of those policies.

RO ¶ 59. The ALJ then concluded-although labeled as a Finding of Fact-that "Plummerand the Historical Knight's Bldg., Inc. are affected persons with standing in DOAH Case No. 98-1634GM." RO ¶

1. This conclusion is reiterated under Ultimate Findings of Fact: "Petitioners Plummer proved that each of them is an affected person. . . . Plummer submitted these objections, recommendations and comments to an agent or subdivision of the County, and they pertained to matters directly involved with the plan that was then under preparation." RO ¶ 216. If the ALJ's determination on Plummer's standing is to be adopted by the Department, then [i] the portion of § 163.3184(1 )(a), Florida Statutes, which requires that the affected person "shall also have submitted oral or written comments, recommendations, or objections to the local government" must include submissions made to any arm or instrumentality of that local government, even if not directly involved in the comprehensive planning process and [ii] that it is sufficient that such comments, recommendations or objections merely be tangentially related to the plan or plan amendment under review.

   
   

   For the reasons which follow, the Department interprets § 163.3184(1)(a), Florida Statutes, to require that comments, recommendations, and objections be specifically directed to the local government's planning agency or governing body in connection with their review and adoption of the plan or plan amendments under consideration, and that such comments, recommendations and objections directly pertain to the plan or plan amendment at issue. This interpretation is based on the Department's knowledge of the Act, an examination of other sections of the Act, see Acosta v. Richter, 671 So. 2d 149, 154 (Fla. 1996) ("'statutory phrases are not to be read in isolation, but rather within the context of the entire section"') and the objectives and purpose of the Act, see Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349, (Fla. 1997) ("consideration must be accorded not only to the literal and usual meaning of words, but also to

   their meaning and effect on the objectives and purposes of the statute's enactment").

   
   

   The Department first examined the sub-section at issue.

   Section §163.3184(1)(a), Florida Statutes, actually sets forth at least two distinct requirements which a person must satisfy in order to be entitled affected person status. First, the person "shall also have submitted oral or written comments, recommendations, or objections to the local government." Id.

   Second, the person shall have made such comments, recommendations, or objections "during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment." Id. Read together, there must be some connectivity between the comments, recommendations or objections made, the specific plan or plan amendment under consideration, and the local government's transmittal, review and adoption process of said plan or plan amendment.

   
   

   The Department further examined other provisions of the Act, and its Rule Chapter 9J-5, Florida Administrative Code, for interpretative guidance. Section 163.3164, Florida Statutes, sets forth various definitions: 'local government' means any county or municipality; 'local planning agency' means the agency designated to prepare the comprehensive plan or plan amendment required by this act; and 'governing body' means "the board of county commissioners of a county, the commission or council of an incorporated municipality, or any other chief governing body of a unit of local government, however designated, or the combination of such bodies where joint utilization of the provisions of this act is accomplished as provided herein."

   
   

   These terms, in turn, are used extensively in other sub- sections of § 163.3184, Florida Statutes. Section 163.3184(3), Florida Statues, provides that "[e]ach local governing body shall transmit the complete proposed comprehensive plan to the state land planning agency . . . ." § 163.3184(3)(a) (emphasis added). Sub-section fifteen, entitled 'public hearings,' provides that the proposed plan or plan amendment may not be transmitted to the state planning agency or adopted unless by affirmative vote of a majority of the governing body, § 163.3184(15)(a), Fla. Stat., and that the "local governing body shall hold at least two advertised public hearings on the proposed comprehensive plan or plan amendment,"

   §163.3184(15)(b), Fla. Stat. (emphasis added). Section 163.3174(1), Florida Statutes, requires all local governments to designate a local planning agency for purposes of the Act and

   that the "local planning agency shall prepare the comprehensive plan or plan amendment after hearings to be held after public notice and shall make recommendations to the governing body." (Emphasis added). The foregoing provisions, when read together, suggest that the reference to local government contained in § 163.3184(1)(a), Florida Statutes, actually refers to the local government's planning agency or governing body.

   
   

   The Department also examined the purposes and objectives of the Act for interpretative guidance. In this regard, the Act clearly emphasizes public participation in the comprehensive planning process:

   
   

   1. It is the intent of the Legislature that the public participate in the comprehensive planning process to the fullest extent possible. Towards this end, local planning agencies and local governmental units are directed to adopt procedures to provide effective public participation in the comprehensive planning process . . . .

      
      

   2. During consideration of the proposed plan or amendments thereto by the local planning agency or by the local governing body, the procedures shall provide for the broad dissemination of the proposals and alternatives, opportunity for written comments, public hearings as provided herein, provisions for open discussions, communication programs, information services, and consideration of and response to public comment.

§ 163.3181, Fla. Stat. (emphasis added). Further guidance is found in Rule 9J-5.004, Florida Administrative Code, entitled public participation: "The local governing body and local planning agency shall adopt procedures to provide for and encourage public participation in the planning process . . . .

The procedures shall include the following: . . . (b) Provisions for notice to keep the general public informed; (c) Provisions to assure that there are opportunities for the public to provide written comments; (d) Provisions to assure that the required public hearings are held; and (e) Provisions to assure the consideration of and response to public comment."

Thus the public comment envisioned by the foregoing statutes and rule provisions is that comment which is considered by the local government's planning agency or governing body "during consideration of the proposed plan or plan amendment," and not, for the first time, in litigation. These provisions further evidence the strong state interest to promote dialogue and comment between the public and the local planning and governing officials charged with reviewing and adopting the comprehensive plan or plan amendment. See also J. DEGROVE and

J. JUERGENSMEYER, PERSPECTIVES ON FLORIDA's GROWTH MANAGEMENT ACT OF 1985, at 87 (Lincoln Institute of Land Policy 1986) (emphasis added):

First, any person claiming to be an affected person under [§ 163.3184(1)(a), Fla. Stat]

. . . must as a prerequisite to challenging the local plan submit either oral or written comments to the local plan during the governmental review and adoption proceedings. Thus, participation in the local review and adoption proceedings is essential to preserve one's right to challenge the local plan.

Hence, in order for the local government to reasonably consider public input, the comments, recommendations or objections must: (i) be directed to the appropriate arm of the local government, specifically the local planning agency or local governing body; and (ii) have a direct nexus to the plan or plan amendment under review. Conversely, a statutory interpretation that would allow persons to make comments, recommendations or objections to any arm or instrumentality of the local government (even if not involved in the comprehensive planning process), and would further allow such comments, recommendations or objections to suffice even if only tangentially related to the plan or plan amendment under review plainly violates the language and spirit of the Act. In addition, statutes should be interpreted in a manner to avoid absurd results. See Tampa-Hillsborough County Expressway Authority v. K. E. Morris Alignment Service, Inc., 444 So. 2d 926, 929 (Fla. 1983). Consequently, remarks made to a code enforcement board during consideration of whether to demolish a structure as unsafe are not sufficient to satisfy the affected person test.

Based upon the foregoing, including the Department's special knowledge of the Act, the Department concludes that the

ALJ erred in his interpretation of § 163.3184(1)(a), Florida Statutes, and that its' interpretation is as or more reasonable than the ALJ's interpretation. Here, the ALJ's finding that Plummer made remarks to the Code Enforcement Board during its hearing concerning the Motts Willis Building is supported by competent and substantial evidence. E.g., RO ¶ 52. However, there is nothing in the record, based upon a complete review thereof, that the Code Enforcement Board is the County's planning agency or is otherwise involved in the comprehensive planning process in any manner which would inform those involved in the comprehensive planning process of Plummer's concerns.

Further, there is nothing in the record, based upon a complete review thereof, that Plummer's comments directly pertained to the 97-Plan Amendment then under review by the County. To the contrary, the ALJ found that Plummer was "[u]naware of the plan- adoption process then underway [and that] Plummer clearly did not offer any comments directly on the proposed plan." RO ¶ 59. Thus, the ALJ's ultimate findings of fact and conclusions of law that Plummer satisfied the affected person requirements of

§163.3184(1)(a), Florida Statutes, is predicated upon his erroneous interpretation of this section.

Consequently, the Department rejects the ALJ's interpretation of § 163.3184(1)(a), Florida Statutes. See § 120.57(1)(1), Fla. Stat. ("The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction . . . ."); see also Pillsbury, 744 So.2d at 1042 (if the matter under review "is infused with overriding policy considerations, the issue should be left to the discretion of the agency"); Schrimsher, 694 So.2d at 862 (agency is given deferential review over ultimate facts and opinions which are infused by policy considerations for which the agency has special responsibility); and McDonald v.

Department of Banking and Finance, 346 So. 2d 569, 579 (Fla. 1st DCA 1977). Further, the Department rejects the ALJ's resulting findings of fact in paragraphs 58-60 and 216 (that Plummer's remarks were sufficient to confer affected person status) as being contrary to the essential requirements of law, and not otherwise supported by competent substantial evidence based upon a complete review of the record thereof, see §120.57(1)(1), Fla. Stat.; Florida Rate Conference, 108 So. 2d at 607-08; Tropical Park, 97 So. 2d at 177; and Evans Packing Co., 550 So. 2d at

119-22.

E.

Summary

Pursuant to a review of the entire record, and the foregoing analysis, Respondents' general and specific exceptions to paragraphs 54, 58-60, and 216 of the Recommended Order are hereby GRANTED, and these paragraphs are hereby rejected.

Accordingly, since Plummer's remarks to the Code Enforcement Board failed to meet at least two elements (timing and sufficiency) of the affected person test-either being adequate to deny affected person standing-Plummer is without standing in this cause. Accordingly, since Plummer does not have legal standing, the Department lacks subject matter jurisdiction to consider the merits of his petition. See Grand Dunes, Ltd. v. Walton County, 714 So. 2d 473, 475 (Fla. 1st DCA), rev. denied sub nom., 728 So. 2d 201 (Fla. 1998).

Plummer's petition is hereby DISMISSED and the findings of fact and conclusions of law contained in paragraphs 48-60, 61- 67, 164-171, 216, 217-223, 252-261 and 286 of the Recommended Order are hereby REJECTED for want of jurisdiction.

County's and DCA's exceptions to paragraphs 131, 133-134, 137- 138, 140, 143, 145, 147, 149, 235-236, and 285 of the

Recommended Order

The County and DCA both take exception to the ALJ's findings that countywide mandatory central potable water connection policies-as applied only to Bocilla Utilities, a private utility currently serving a defined portion of the Don Pedro island chain-will increase either the intensity or rate of residential development on the island chain thereby promoting urban sprawl. Respondents take further exception to the ALJ's conclusions said connection policies are not supported by adequate data and analysis or creates internal inconsistency within the plan thereby rendering the plan amendments not in compliance. See RO ¶¶ 131, 133-134, 137-138, 140, 143,145, 147,

149, 235-236, and 285. Since these paragraphs are common to the exceptions filed by both the County and DCA and further share common themes, they will be discussed together.

A.

Additional background

The County, in connection with its re-write of its comprehensive plan, determined to utilize the expansion of its County-owned sewer and water utilities as a means of focusing and directing new development to those areas where central sewer and water is presently available (or should be available), i.e. those areas within the County where development would be most desirable from a countywide planning perspective. See RO ¶¶ 26,32, 35-36, 175, 190-191, and 193-195. The 97-Plan Amendment

contains policies which state that all existing and new development within the County are required to connect to central sewer and water facilities (without distinction between County- owned and certificated privately-owned utilities) within a certain period of time of when such central facilities become available. RO ¶ 173 and 186-187.

The mandatory central sewer and water connection policies contained in the 97-Plan Amendment, RO ¶¶ 186-187, simply reinforced the County's then existing comprehensive plan and codes, see RO ¶ 173 (citing to Infrastructure Plan Policy 8.1.5 ["Charlotte County will maintain its current policy requiring mandatory connection to sewer and water when such service is provided, thus reducing the number of septic tanks and wells in use." 97-Plan Amendment, County's Exhibit 3, at p. 4-190]); see also County Code Sec. 3-8-41 ("All existing and new residential development shall tie into a centralized sanitary sewer and potable water system where such connections are located contiguous to the right-of-way . . . .") (County's Exhibit 25, at pp. 1756-57); and see Tr., at pp. 219, 1135-1136, 1249 and 2205. Conversely, properties which are undeveloped do not have to connect. See RO ¶ 186; see also Tr., at 571-575. Further, the 97-Plan Amendment states "that the availability of water and sewer will not necessarily justify development approval." RO ¶ 178.

At issue here is a chain of bridgeless barrier islands (lying between Manasota Key and Gasparilla Island) known as Thornton Key, Knight Island, Bocilla Island, Don Pedro Island, and Little Gasparilla Island; Palm Island is sometimes included in this chain. RO ¶ 16. This chain of islands will be referred to as the "Don Pedro island chain." A bridge ran to the Don Pedro island chain until removed by the Army Corps of Engineers in the 1960's during construction of the Intracoastal Waterway. RO ¶ 20. Petitioners in the Starr Group all reside on the Don

Pedro island chain. RO ¶ 160. Presently, these Petitioners all receive their potable water from cisterns. Id. These Petitioners will all incur costs for connection and monthly service if they are forced to tie into central potable water.

Bocilla Utilities is a privately owned company currently providing central potable water to a portion of the Don Pedro island chain. RO ¶¶ 119 and 126. At the time of the hearing, Bocilla Utilities was one of twelve privately owned water utilities providing central potable water to various portions of the County. See RO ¶ 39 Bocilla Utilities, according to the ALJ's findings, "has a proven record of technical competence and professional integrity in producing and supplying potable water to those island residents who are its customers." RO ¶ 119.

Bocilla Utilities first started its operations in the early 1980's, and in 1984 received a permit to operate a reverse osmosis plant. RO ¶ 1l9-l20. The plant was initially designed to produce 30,000 gallons of potable water a day. Id. In 1991, Bocilla Utilities became a public utility and its rates are presently regulated by the Florida Public Service Commission ("PSC"). RO ¶ 126. Bocilla Utilities was granted a certificated territory to serve a portion of the Don Pedro Island chain. RO ¶¶ 126 and 129. Presently, Bocilla Utilities operates two wells on the Don Island chain "and is in the process of adding an already-permitted third well at the site." RO ¶¶ 121-122. Bocilla Utilities is currently permitted to produce up to 120,000 gallons a day, although it is just completing the first phase of its expansion to enable it to produce 60,000 gallons of potable water a day. RO ¶ 127.

Bocilla Utilities certificated territory includes 730 platted lots which are either already developed or vested and available for residential development RO ¶ 129-130 and 132; see also Tr., at pp. 223 and 1816. In fact, "[t]hese 730 lots constitute Bocilla Utilities' entire certificated territory, except for one unplatted 12-acre parcel." RO ¶ 128. At the time of the hearing, Bocilla Utilities had central waterlines already in place to serve 535 of its 730 lots. Id.; see also Tr., at pp. 2191-2192. Further, of those lots which have been developed where a central water line exists, 186 homes have connected to central water and 58 homes have not connected (i.e. 76% of the developed lots have connected to central wafer where it is has been made available). See id. Conversely, there are only 195 lots in Bocilla Utilities certificated territory which are not currently served by a central water line at the time of the hearing. Id. In any event, Bocilla Utilities is prohibited under the plan policies from expanding its certificated

territory area of service on the Don Pedro island chain. RO ¶¶

144 and 175 (citing to Infrastructure Plan Policy 9.1.4 [which states that "Certificated areas will not be extended or expanded for potable water or sanitary sewer outside of the Infill Area boundaries," the 97-Plan Amendment, County's Exhibit 3, at p. 4- 191]); see also County's Exhibit 3, Vol. I, at p. 4-191; Tr., at pp. 1212-13.

Finally, at the time of the hearing, the growth on the Don Pedro island chain "has not been remarkabl[y] fast," RO ¶ 132, even though little of the island chain remains unplatted, RO ¶ 130, and even though Bocilla Utilities has been providing central water service within its certificated area for the past several years, see RO ¶¶ 119-120 and 126; Tr., at p. 1153.

Here, as previously noted, almost the entirety of Bocilla Utilities' certificated area is already platted end vested for residential development. RO ¶¶ 129-130 and 132; see Tr., at pp. 223 and 1816.

In the instant matter, the ALJ found that the 97-Plan Amendment policies requiring mandatory connection to central potable water, as applied to the Don Pedro island chain, would increase the intensity of residential usage, i.e. the frequency of occupancy of residences, on the island chain. See RO ¶¶ 131, 133-134, 137-138, 140, 145, 147 and 149. The ALJ also found

that the plan policies requiring mandatory central water connections, as applied to the Don Pedro island chain, would result in increased rate of residential development on the island chain. See RO ¶¶ 131, 140, 143, 145, and 147. He further concluded the plan policies were not supported by data and analysis that justified these increases, and the policies were inconsistent with other provisions of the plan (which, among other things, discouraged development within coastal high hazard areas and on the barrier islands, sought to preserve and promote the natural resources on the islands, and protect water quality). RO ¶¶ 235-236. The ALJ held that the mandatory central water connection policies, as applied to the Don Pedro island chain, are "internally inconsistent with numerous other plan provisions tending to discourage urban sprawl." RO ¶ 285. The ALJ then determined that these inconsistencies resulted in the 97-Plan Amendment being not in compliance. RO ¶ 287. The County and DCA contend that these findings and conclusions are based upon unreasonable and compounded inferences, not supported by competent substantial evidence, and misapplication of the law to the facts.

B.

Legal status of County's 1988 comprehensive plan Where an adopted plan amendment has been found by the

Department to be in compliance and the plan amendment is challenged under § 163.3184(9), Florida Statutes, the plan amendment does not take effect until such time as a final order is issued finding said plan amendment, or portions thereof, to be in compliance. § 163.3189(2), Fla. Stat. Here, the 97-Plan Amendment was properly challenged pursuant to the instant proceeding and, hence, does not take effect. Id. Consequently, the last adopted comprehensive plan determined to be in compliance continues to remain in full force and effect until properly amended, §163.3197, Florida Statutes, which, in the instant case, is the County's 1988 comprehensive plan (as amended by the final order of the Administration Commission), RO 33-34; see also Department of Community Affairs v. Charlotte County, 12 F.A.L.R. 2760 (Fla. Administration Comm'n 1990); DCA's Exhibit 1. Accordingly, the Department hereby takes notice of the County's 1988 plan presently in effect (as filed with and maintained by the Department pursuant to Chapter 163, Part II, Florida Statutes, and Rule Chapter 9J-11, Florida Administrative Code) as such plan may pertain to the Department's analysis of the issues herein.

C.

Urban sprawl rules Urban sprawl is defined by rule as:

[U]rban development or uses which are located in predominately rural areas, or rural areas interspersed with generally low-intensity or low-density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided. . . .

Rule 9J-5.003(134), Fla. Admin. Code.

The Department has promulgated a number of rules regarding urban sprawl and its various indicators. See Rule 9J-5.006, Fla. Admin. Code. The specifics regarding urban sprawl are contained in Rule 9J-5.006(5) which sets forth standards to guide the review of plan and plan amendments. This rule provides thirteen indicators of urban sprawl. Rule 9J- 5.006(5)(g), Fla. Admin. Code. The local government's comprehensive plan must be reviewed in its entirety and "a land use analysis will be the focus of the review and constitute the primary factor for making the determinations[,]" and land use types cumulatively will be evaluated based on extent, location, distribution, density, intensity, compatibility, suitability, functional relationships and land use combinations. Rule 9J- 5.006(5)(h), Fla. Admin. Code. In turn, each of the foregoing land use functions will be evaluated in the context of features and characteristics unique to each locality, and including:

1. size of the developable area;

   
   

2. projected growth rate;

   
   

3. projected growth amount (acres per category);

   
   

4. facility availability;

   
   

5. existing pastern of development, and including an analysis of the extent to which the existing pattern of development reflects urban sprawl;

   
   

6. projected growth trends over the planning period, including the change in overall density or intensity of urban development throughout the jurisdiction

   
   

7. costs of facilities and services;

   
   

8. extra-jurisdictional and regional growth characteristics;

   
   

9. transportation networks and use characteristics; and

   
   

10. geography, topography, and various natural features of the jurisdiction.

Rule 9J-5.006(5)(i), Fla. Admin. Code. Additionally, the existence of any of twenty-two enumerated "development controls"

in the plan must also be taken into account in determining if the plan or plan amendment promotes urban sprawl. Rule 9J- 5.006(5)(j), Fla. Admin. Code. Finally, in evaluating the foregoing factors against the plan or plan amendment, "[i]f a local government has in place a comprehensive plan found to be in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction." Rule 9J-5.006(5)(k), Fla. Admin. Code.

In the instant matter, because the ALJ's conclusions that the 97-Plan Amendment policies will promote urban sprawl on the Don Pedro island chain, RO ¶¶ 235-36 and 285, is premised on the findings of fact that the mandatory connection policies will increase the intensity and rate of residential development on the island chain, e.g. RO ¶ 131, each of these issues will be analyzed in turn.

D.

Intensity of residential usage analysis

At the outset of this analysis, as with the preceding analyses, the Department is constrained from rejecting or modifying any finding of fact unless there is absolutely no competent substantial evidence in the record, based upon a complete review thereof, to support said finding or the finding does not comply with the essential requirements of law. § 120.57(1)(1), Fla. Stat.; see, e.g., Schrimsher, 694 So. 2d at 860; Smith, 555 So. 2d at 1255. Thus in regard to the intensification issue, if there is any direct evidence in the record to support the ALJ's findings of fact that the mandatory water connection policies will intensify residential usage on the Don Pedro island chain, or if the findings are based upon any reasonable inference derived from the direct evidence, then the Department must affirm these findings even if it disagrees with it. See Pillsbury, 744 So. 2d at 1042.

Thus, in determining whether to adopt, modify, or reject recommended findings of fact, as previously stated, the Department cannot re-weigh the evidence or give more credibility to one inference over a competing inference. E.g., Heifetz, 475 So. 2d at 1281. However, all findings of fact based upon an inference must be "reasonably inferred" from other competent substantial evidence in the record. See Duval Utility Co., 380 So. 2d at 1031 ("Competent substantial evidence is 'such

evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred [or] . . . such relevant evidence as a reasonable mind would accept to support a conclusion.'") (citation omitted) (emphasis added); Goss, 601 So. 2d at 1234 (the ALJ may "draw permissible inferences from the evidence"); see generally 23 Fla Jur 2d Evidence § 96 ("[a]n inference is a deduction from facts which reason dictates"). Similarly, competent substantial evidence may be not be based upon mere surmise, conjecture or speculation. See Florida Rate Conference, 108 So. 2d at 607; Tropical Park, 97 So. 2d at 177 (Hobson, J. concurring) ("We know of no rule where circumstantial evidence is relied upon which permits guess predicated upon guess or conjecture upon conjecture."); see also Evans Packing Co., 550 So. 2d at 119-22 (court overturned administrative order predicated on findings of fact which were not supported by competent substantial evidence but rather upon inferences and speculation).

Here, the Department could not find any competent substantial evidence-whether direct evidence or such evidence upon which a reasonable inference could be inferred from-based upon a review of the entire record herein, including a detailed review of the Starr Group's case-in-chief(Tr., at pp. 187-419, 485-503, 524-25) and its Exhibits 1 through 7, for the proposition that a mandatory central water connection policies, as applied only to developed properties, will "intensify" residential usage on the Don Pedro island chain.

The foregoing conclusion is supported by an examination of the testimony and exhibits of the testimony of the three Petitioners who comprise the Starr Group (Tr, at pp. 188-215)- since they have the burden of proof-to ascertain if they gave testimony or offered any documents which could form such competent substantial evidence upon which the ALJ's findings of fact regarding the intensification of residential usage could be reasonably inferred. Robert Starr of the Starr Group testified that homes on central water will use more water than homes on cistern or well, Tr., at pp. 190-92: However, Mr. Starr also testified that he has only actually seen one water bill of someone on central water, Tr., at p. 194, and he did not offer any water bills into evidence. Susan Neyland of the Starr Group, when asked if she had ever noticed any incidences of increased water usage consumption from houses on central water, testified "I see more people with their garden hoses out watering their plantings. I see friends let water run in their kitchen sinks. I see -- who are on utility water. I see a lot of waste." Tr., at p.198. Ms.Neyland indicated that she has not

reviewed anyone's water bill and does not know how much water they actually use. Tr., at p. 199. Ms. Neyland did not offer any water bills into evidence. Betty Brenneman of the Starr Group is a resident and real estate agent on Don Pedro island and she also gave her opinion that persons on central water will use more water than persons on cisterns. Tr., at pp. 20407.

Ms. Brenneman, when asked if she had ever noticed any incidences of increased water usage consumption from houses on central water, testified: "My neighbors all have beautiful lawns and I don't. . . . When I moved there, there was one, possibly two single-family pools.

. . Now there are quite a few single-family pools. Probably at least two dozen." Tr., at p. 208 (referenced in RO ¶ 139).

She further thought that the availability of central water was a factor in the new home construction that had taken place on the island chain. Tr., at p. 211. However, when asked if she would change her water conservation practices if supplied Dy central water, Ms. Brenneman testified that "I would like to think that I would [still] be a conservation-minded person because I have done it for 12 years." Tr., at p. 213. Ms. Brenneman did not offer any water bills into evidence. Finally, it does not appear from the record that any of these three Petitioners were tendered or accepted as an expert.

Conversely, one of the exhibits offered into evidence by the Starr Group (and which was admitted) indicated: "The County's per capita potable water usage has dropped significantly since the late 1980s. Data from the Southwest Florida Water Management District shows that per capita use dropped from 152 gallons per person per day in 1987 to 102 gallons per person per day in 1994. This occurred during a period when mandatory water connection was in force and can be attributed to many factors, including increased education about conservation, low-volume plumbing fixtures which are required by County law, and economic conditions." Starr Group's Exhibit 9 (2/2), at p 5,116; and see Tr., at pp. 283-85. Furthermore, Dr. Ahmadi, with the Department of Environmental Protection, testified "that if the user of the water will be paying for the amount of water that they consume and use, then there would not be any incentive for the user to use more water than what we (sic) need." Tr., at p. 1551.

Based upon the foregoing analysis and a complete review of the record herein, the Department rejects the ALJ's findings of fact that the mandatory central water connection policies in question will "intensify" residential usage on the Don Pedro

island chain, contained in paragraphs 131, 133-134, 137-138,

140, 143, 145, 147, and 149 of the Recommended Order, as not supported by any competent substantial evidence, neither directly nor by reasonable inference. See § 120.57(1)(1), Fla. Stat.; Florida Rate Conference. 108 So. 2d at 607-08; Tropical Park, 97 So. 2d at 177; and Evans Packing Co., 5505o So. 2d at 119-22.

E.

Acceleration of the rate of residential growth analysis

As with the prior analysis and upon complete review of the entire record, the Department has not found any positive or direct evidence which stands for the specific proposition that mandatory water connection policies, as applied only to developed properties, will "accelerate" the rate of new residential development on the Don Pedro island chain.

Accordingly, the Department must ascertain if the ALJ's findings that the rate of residential development on the island change will accelerate as a result of the mandatory water connection policies are based upon reasonable inferences derived from other competent substantial evidence in the record. See Duval Utility Co., 380 So. 2d at 1031; Goss, 601 So. 2d at 1234; see generally

23 Fla Jur 2d Evidence § 96 (West 1995). The ALJ's specific findings of fact relevant to this discussion are contained in paragraphs l31, 140, 143, 145, and 147 of the Recommended Order.

Here, as with the preceding analysis, in order to make the inference that mandatory connection to central water will accelerate the rate of new development on the Don Pedro island chain requires some basic, underlying predicates in the record. Some evidence of historical growth trends on the island chain in question would be pertinent. Cf. Rule 9J-5.006(5)(i)(53, Fla.

Admin. Code. On this issue, the ALJ found that, historically! new growth on the Don Pedro island chain "has not been remarkabl[y] fast," RO ¶ 132, even though Bocilla Utilities has been certificated to provide central water service within its certificated area since 1991. See RO ¶¶ 119-120 and 126; see also Tr., at pp. 1153. Other relevant evidence might be what percentage of new customers voluntarily chose to connect to central water versus those who chose to install or remain on a private cistern or well since Bocilla Utilities began providing central water. If, for example, most new development which occurred where central water service was available voluntarily opted to connect, then mandatory connection policies would likely have little or no effect over a voluntary connection

policies regarding any new development. Even some type of market analysis regarding the development potential of vacant lots with private cisterns or wells versus those with central water would have been relevant. If, as the ALJ infers, lots with availability to central water are more desirable for new home construction, then the mere availability of central water will fuel demand regardless of whether there was mandatory connection policies in place or not. Again, the Department could not find any evidence in the record to support the inference made that a mandatory connection policy will accelerate growth. In fact, the only record evidence contradicts the theory that reliable potable water will accelerate growth. And, since a property owner only pays for a connection when a lot is developed, see RO ¶ 186; County's Exhibit 25, at p. 1756 (County Code Sec. 3-8-41); Tr., at pp. 571-575, the policy does not create a demand to maximize development benefits simply because costs have risen.

Consequently, the Department must conclude, based upon a complete review of the record, that the ALJ's findings of fact that the mandatory central water connection policies in question will "accelerate" the rate of new residential development on the Don Pedro island chain, as contained in paragraphs 131, 140, 143, 145, and 147 of the Recommended Order, are not supported by any competent substantial evidence, neither directly nor by reasonable inference. see § 120.57(1)(1), Fla. Stat.; Florida Rate Conference. 108 So.2d at 607-08; Tropical Park, 97 So.2d at 177; and Evans Packing Co., 550 So.2d at 119-22, and must, therefore, be rejected.

F.

Analysis of the ALJ's ultimate findings of fact and conclusions of law regarding the mandatory central water connection issue

The ALJ determined as ultimate facts and conclusions of law that the mandatory central water connection policies, as applied to the Don Pedro island chain, is internally inconsistent with numerous other plan provisions tending to discourage urban sprawl and not supported by adequate data and analysis. RO ¶¶ 235-36 and 285. The ALJ then concluded, as a consequence of the mandatory water connection policies, as applied to the Don Pedro island chain, that the 97-Plan Amendment is not in compliance, RO 11 287, and requested that this matter be sent to the Administration Commission for final agency action.

First, for the reasons previously stated, the ALJ's findings of fact that the mandatory central water connection policies will "intensify" residential usage and will "accelerate" new residential development on the island chain are not supported by competent substantial evidence and, therefore, cannot serve as a basis to conclude that the plan will promote urban sprawl. However, even assuming, for sake of argument, that the mandatory central water connection policies will cause residential units to be utilized more "intensely" and that new residential development will occur at a quicker rate than without said policies, these assumed facts do not constitute urban sprawl as defined in Rule 9J-5.003( 134), Florida Administrative Code (quoted in Section C, supra). Comparing the instant facts to the factors in the urban sprawl rule, there has been no conversion of rural land on the Don Pedro island chain to other uses under the 97-Plan Amendment and the island chain still remains almost entirely platted and vested for single family development. See RO ¶¶ 129-30 and 132; see also Tr., at

p. 1816. The policies in question will have zero impact on densities on the island chain. RO ¶ 130; see Tr., at pp. 1152- 53, 1816 and 2025. Additionally, the County imposed an overlay district over the entire island chain which restricts all new residential growth to one house per acre or per vested lot. Id. Further, the mandatory connection policies do not create any uses "which are not functionally related to land uses which predominate the adjacent area." As stated, the entire island chain is already platted and thus vested for residential development and the plan amendments at issue do not change the permitted land uses or increase densities on the island chain. Tr., at p. 1816. Finally, the mandatory connection policies do not create areas of urban development which fail to maximize the use of existing public facilities or the use of areas within which are public services are provided. See Tr. at pp. 1142-42. Here, Bocilla Utilities will continue to provide potable water service to those areas of Don Pedro island chain based upon its previously issued territory certificate and there is nothing in the challenged plan amendments which permit Bocilla Utilities to expand its territory. See, e.g., County's Exhibit 3, at p. 4- 191; Tr., at pp. 1212-13. Accordingly, the Department concludes that the plan policies regarding mandatory connection to central water and sewer, even as applied to the Don Pedro island chain, do not fall within the definition of urban sprawl in Rule 9J- 5.003(134), Florida Administrative Code. See Board of County Commissioners of Martin County v. City of Stuart, 1999 WE 1483614, *37 (WESTLAW 1999) (administrative law judge found that challenged plan amendment did not constitute urban sprawl as defined).

Second, pursuant to the Department's rules for determining whether a plan or plan amendment promotes or discourages urban sprawl, "[i]f a local government has in place a comprehensive plan found to be in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction." Rule 9J- 5.006(5)(k), Fla. Admin. Code (emphasis added). The Department is thus compelled to compare the County's comprehensive plan which is presently in effect with the 97-Plan Amendment in order to initially determine how the proposed plan policies regarding mandatory connection to central water differed from the present plan. If these are new policies, then the issue becomes whether the 97-Plan Amendment exacerbates urban sprawl over the County's 1988 comprehensive plan currently in effect. Policy 2.2 of the Potable Water & Sanitary Sewer Sub-Element of the County's present comprehensive plan states:

Require all existing and new residential development tie into a centralized sewer and potable water system where such connections are located contiguous to the right of way which contains these utilities and within 10 feet of the projection of any property corner normal to the utility lines, and the facility has sufficient capacity to accommodate the development.

County's 1988 Comprehensive Plan, Potable Water & Sanitary Sewer Sub-Element, Policy 2.2; see also Tr., at 219 (said policy referenced by the County utilities director). Here, the challenged policies in the 97-Plan Amendment do not substantially differ from what is in the County's 1988 present plan. See, e.g., Tr., at pp. 1135-36 and 1259. Furthermore, the challenged policies substantially mirror what is currently in the County Code, at Sec. 38-41 (County's Exhibit 25). See also County's Exhibit 9, at p. 215; Tr., at p. 1140.

Accordingly, the Department concludes that the mandatory central water connection policies do not exacerbate urban sprawl since there has been no substantive change of policy by the County, and the indicators of urban sprawl such as the premature platting which presently exist on the Don Pedro island chain continue to exist regardless of whether there are mandatory water connection policies applied to developed properties. See Board of County Commissioners of Martin County, 1999 WL 1483614,

at * 37 (the land uses assigned to the annexed parcels was substantially the same as pre-annexation and thus did not exacerbate urban sprawl). In light of the foregoing, the Department does not need to determine if the ALJ's findings and conclusions regarding urban sprawl comport with the technical components and criteria of Rule 9J-5.006(5), Florida Administrative Code; however, on their face, they do not appear to do so. The mandatory water connection policies standing alone-without involving the expansion of any utility service area-do not trigger any of the thirteen primary indicators of urban sprawl set forth Rule 9J-5.006(5)(g), Florida Administrative Code. To the contrary, mandatory central water connection policies where central facilities currently exist (and which do not involve expansion of the service territory boundaries) counters three of the thirteen indicators by and future central facilities, Rules 9J-5.006(5)(g)(6-7), and decreasing the cost of providing and maintaining such facilities by sharing the costs among the most users, Rule 9J- 5.006(5)(g)(8), Fla. Admin. Code. See also Tr., at pp. 1142-43.

Third, the Charlotte County Commission is given a statutory presumption that its decisions concerning a plan or plan amendment are valid if fairly debatable. § 163.3184(9), Fla.

Stat.; B & H Travel Corp. v. Department of Community Affairs, 602 So.2d 1362,1365 (Fla. 1st DCA 1992) (The fairly debatable standard "is a deferential one that requires affirmance of the local government's action if reasonable persons could differ as to its propriety."). Here, the ALJ concluded that the County's mandatory central water connection policies, as applied to the Don Pedro island chain, rendered the plan amendments not in compliance. Consequently, notwithstanding the foregoing discussion, the ultimate issue is Charlotte County Commission to adopt mandatory connection policies in its new plan on a countywide basis, and not exclude the Don Pedro island chain from those polices, were fairly debatable in relation to being consistent with other provisions in the plan and being supported by adequate data and analysis. In the instant matter, the decision by the Charlotte County Commission to incorporate in the re-write of its plan a provision that is contained in the County's existing plan found to be in compliance and is also contained in the County Code, on its face, are at minimum, subject to fair debate. Moreover, a complete review of the record in this case established that the County had legitimate reasons for adopting mandatory central water and sewer connection policies on a countywide basis including, but not limited to, a desire to treat all private utility providers equally. See, e.g., Tr., at pp. 219, 224-25, 238-39, 241-

43,281,283-85, 1140-44, 1178-79, 1632-33,1666-67, 1936-40 and

2205-06; Starr Group's Exhibit 9 (2/2), at pp. 1-5; County's Exhibit 3, Vol. I, at pp. 4-102 to 4-122 (Infrastructure Element, Potable Water and Sanitary Sewer Section).

County's Exhibit 9, minutes of the March 9, 1997 County Commission hearing regarding the proposed plan amendments, is illustrative of the County's legislative rationale:

Chairman DeBoer stated another issue is mandatory

hook-ups on the barrier islands, recalled the language within the Urban Service Area was added to exclude the barrier islands with the reason being that extending water lines would promote growth but advised he has not seen any evidence to support that premise.

Chairman DeBoer added he also has a problem with excluding public utilities since they supply water to fight fires and the Board's previous action makes it appear the Board is willing to let them expand but not willing to pay for public safety. Commissioner

Horton stated he wants private utilities treated the same and voiced support for striking "within the Urban Service Area." Commissioner Cummings opined Commissioner Horton had a sustainable argument and endorsed striking "within the Urban Service Area." Commissioner Coppola . . . voiced strong objection to a forcible mandate of a private industry. Attorney Lee clarified a mandatory enforcement ordinance is currently on the books. Commissioner Coppola stated that he is totally against the ordinance as well.

Commissioner Cummings moved to strike the language within the urban service area from policy 16.3.1 and 16.3.2, seconded by Commissioner Horton. Call on the motion: Chairman DeBoer and Commissioners Cummings, Horton and Weikel voted "yes" and Commissioner Coppola voted "no." Motion carried: (4:1).

County's Exhibit 9, at pp. 215-16 (minutes contained in Book 50). Accordingly, the Department concludes that the mandatory connection policies for water and sewer, as adopted by the Charlotte County Commission, on a countywide basis without exclusion, were fairly debatable and the ALJ's legal conclusions to the contrary are in error.

Finally, DCA in its exceptions contends that the "[t]he extent of the availability of potable water on the island [chain] was set in 1991 when the Bocilla Utilities certificated

area was established [Tr., at p. 990]. Those who would develop and use additional water have possessed-and thus far forgone-the opportunity to do so." Although this raises the question of whether members of the Starr Group are barred from their present challenge under the doctrines of estoppel or waiver, the Department does not need to address this issue, nor determine if it would be necessary to remand it back to the ALJ for additional fact finding, in light of the Department's preceding rulings.

Based upon the foregoing, the Department concludes that the ALJ erred in his ultimate findings of fact and conclusions of law that the mandatory central water connection policies, as applied to the Don Pedro island chain, promoted urban sprawl on the island chain, was internally inconsistent with other plan provisions, or was not supported by data and analysis, as contained in paragraphs 235-36 and 285 of the Recommended Order, and that the Department's interpretations and conclusions based on the aforesaid statutes and rules, as applied to the instant facts, are equally or more reasonable. Accordingly, based upon a complete review of the record and the preceding analyses herein, the Department hereby rejects these paragraphs. See § 120.57(1)(1), Fla. Stat.; and see Pillsbury, 744 So.2d at 1044; Schrimsher, 694 So. 2d at 862; McDonald, 346 So. 2d at 579.

G.

Summary

Pursuant to a review of the entire record, and the foregoing analyses, Respondents' general and specific exceptions to paragraphs 131, 133-134, 137-138, 140, 143, 145, 147, 149,

235-236, and 285 of the Recommended Order are hereby GRANTED, and these paragraphs are hereby REJECTED.

County's exception to paragraph 14 of the Recommended Order Paragraph 14 of the Recommended Order briefly describes the

extensiveness of the County's coastal high hazard area. The ALJ cited to the plan's Future Land Use Element (FLUE) Map 1.17.

County's Exhibit 3, Vol. I, at p. 1-65 (Map 1.17 entitled "Storm Surge of Land Falling Storm"). The County asserts that the ALJ referred to the wrong map and that its coastal high hazard area is depicted in Map 3-36. County's Exhibit 3, Vol. I, at p. 3-

162. The Department has reviewed the two maps which, on their face, appear to depict different things; moreover, the plan text describing the County's coastal high hazard area references Map

3-36, and not FLUE Map 1.17. County's Exhibit 3, Vol. I, at p. 3-160. Based upon a review of the entire record, the ALJ's reference to Map 1.17 is not supported by competent substantial evidence. Inasmuch as the area depicted on Map 3-36 is actually larger than the area referenced in paragraph 14 of the Recommended Order, the modification of the map reference does not have effect any of the findings or conclusions herein.

The County's exception to paragraph 14 of the Recommended Order is hereby GRANTED; said paragraph shall be modified to refer to Map 3-36 (this will result in modifying of the boundaries described therein).

County's and DCA's exception to paragraph 126 of the Recommended Order

The County and DCA seek to modify paragraph 126 of the Recommended Order to find that the County granted Bocilla Utilities its certificated territory in 1991, and not the PSC. While Respondents may be correct in their assertion that it is the County, and not PSC, which granted Bocilla Utilities its original certificated territory, e.g., Tr., at p. 2205; County's Exhibit 25, there is sufficient testimony in the record from which this finding could be reasonably, if not mistakenly, inferred.

The County's and DCA's exceptions to paragraph 126 of the Recommended Order are hereby DENIED.

DCA's exception to paragraph 161 of the Recommended Order DCA takes exception to paragraph 161 of the Recommended

Order. There is competent substantial evidence, either direct evidence or other competent substantial evidence from which a reasonable inference could be drawn, to support this finding of fact.

DCA's exception to paragraph 161 of the Recommended Order is hereby DENIED

County's exceptions to paragraphs 1, 4, 5, 13, 39, 89, 120, 125,

128, 130, 132, 135-136, 141-142, 144, 151-1S2, 157, 160, 162-

163, 173, and 243 of the Recommended Order

The remainder of the County's exceptions are to paragraphs 1, 4, 5, 13,39, 89, 120, 125, 128, 130, 132, 135-136, 141-142,

144, 151-152, 157, 160, 162-163, 173, and 243 of the Recommended Order. The Department has reviewed these exceptions and has concluded that these exceptions either attempt to impermissibly supplement additional findings of fact or are de minimis in light of the preceding rulings.

The County's exceptions to paragraphs 1, 4, 5, 13, 39, 89,

120, 125, 128, 130, 132, 135-136, 141-142, 144, 151-152, 157,

160, 162-163, 173, and 243 of the Recommended Order are hereby DENIED.

VII. FINDINGS OF FACT

The ALJ's findings of fact and ultimate findings of fact contained in paragraphs 1-13, 15-47, 68-130, 132, 135-136, 139,

141-142, 144, 146, 148, 150-163, 172-215, 224-234, and 237 of

the Recommended Order are supported by competent substantial evidence and are hereby ADOPTED and incorporated herein by reference.

VIII. CONCLUSIONS OF LAW

The ALJ's conclusions of law contained in paragraphs 238- 251, 262-284, and 288 of the Recommended Order are reasonable and are hereby ADOPTED and incorporated herein by reference.

IX. RECOMMENDATION

The ALJ concluded that the plan amendments in question are "not in compliance." RO ¶ 287. The ALJ recommended that the Department submit the Recommended Order to the Administration Commission for final agency action. Based upon the foregoing analyses and rulings, the Department has determined that the

1. Plan Amendment to be "in compliance" pursuant to §§ 163.3184(1)(b) and 163.3184(9), Florida Statutes. Accordingly, the ALJ's recommended disposition is REJECTED.

   X. ORDER

   Upon review and consideration of the entire record of the proceeding, including the Recommended Order, and the foregoing discussion and authorities, it is hereby ORDERED:

   
   

   1. The exceptions filed by the Columbia Group are DENIED.

      
      

   2. Plummer's petition is DISMISSED and the findings of fact and conclusions of law contained in paragraphs 48-67, 164- 171, 216-223, 252-261 and 286 of the Recommended Order are REJECTED for want of jurisdiction.

      
      

   3. The County's and DCA's general and specific exceptions to paragraphs 131, 133-134, 137-138, 140, 143, 145, 147, 149, 235-236, and 285 of the Recommended Order are GRANTED, and these paragraphs are REJECTED.

      
      

   4. The County's exception to paragraph 14 of the Recommended Order is GRANTED; this paragraph shall be MODIFIED to reference Map 3-36 in the County's plan instead of FLUE Map 1.17, and the boundaries described in said paragraph shall be modified accordingly; all other portions of paragraph 14 not inconsistent herewith are adopted.

      
      

   5. The County's and DCA's exceptions to paragraph 126 of the Recommended Order are DENIED.

      
      

   6. DCA's exception to paragraph 161 of the Recommended Order is DENIED.

      
      

   7. The County's exceptions to paragraphs 1, 4, 5, 13, 39, 89, 120, 125, 128, 130, 132, 135-136, 141-142, 144, 151-152, 157, 160, 162-163, 173, and 243 of the Recommended Order are DENIED.

      
      

   8. The ALJ's findings of fact and ultimate findings of fact contained in paragraphs l 13, 15-47, 68-130, 132, 135-136, 139,141-142, 144, 146, 148, 150-163, 172-215, 224-234, and 237 of the Recommended Order are ADOPTED and incorporated herein.

      
      

   9. The ALJ's conclusions of law contained in paragraphs 238-251, 262-284 and 288 of the Recommended Order are ADOPTED and incorporated herein.

   10. The ALJ's conclusion that the 97-Plan Amendment is "not in compliance," as contained in paragraph 287 of the Recommended Order, is REJECTED.

       
       

   11. The ALJ's recommendation that the Recommended Order be submitted to the Administration Commission is REJECTED.

       
       

   12. The 97-Plan Amendment is determined to be "in compliance."

DONE AND ORDERED in Tallahassee, Florida.

Steven M. Seibert, Secretary DEPARTMENT OF COMMUNITY AFFAIRS

2555 Shumard Oak Beard Tallahassee, FL 32399-2100

NOTICE OF RIGHTS

THE PARTIES ARE HEREBY NOTIFIED OF THEIR RIGHT TO SEEK JUDICIAL REVIEW OF THIS ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.100. TO INITIATE AN APPEAL, A PETITION MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL WITHIN THIRTY (30) DAYS OF THE FILING OF THIS FINAL ORDER WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS. A PETITION FILED WITH THE DISTRICT COURT OF APPEAL SHOULD BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22, F.S.

CERTIFICATE OF FILING AND SERVICE

I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned designated Agency Clerk, and that true and correct copies been furnished to the persons listed below in the manner described, on this 16th day of May, 2000.

For Paula Ford Agency Clerk

Served via U.S. Mail:

Rhonda Jordan (Pro Se Petitioner) 4437 Parmely Street

Charlotte Harbor, Florida 33980

John Columbia (Pro Se Petitioner) 2150 Cedarwood Street

Port Charlotte, Florida 33948

Daniel Fletcher (Pro Se Petitioner) Post Office Box 2670

Port Charlotte, Florida 33949

Eugene Haluschak (Pro Se Petitioner) 3191 Lakeview Boulevard

Port Charlotte, Florida 33948

John Harmon (Pro Se Petitioner) 3083 Beacon Drive

Port Charlotte, Florida 33952

Robert J. Starr (Pro Se Petitioner) Post Office Box 5337

Grove City, Florida 34224

Betty L. Brenneman (Pro Se Petitioner) Post Office Box 67

Placida, Florida 33946-0067

Suzanne Neyland (Pro Se Petitioner) Post Office Box 849

Placida, Florida 33946-0849

Robert K. Lewis, Jr., Esq. (Attorney for Petitioner Eugene Plummer)

6237 Presidential Court, Suite A Fort Myers, Florida 33919-3508

Brendan Bradley, Esq. (Attorney for Respondent Charlotte County) Deputy County Attorney

Charlotte County 118500 Murdock Circle

Port Charlotte, Florida 33948-1094

Honorable Robert E. Meale (Administrative Law Judge) Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

And served via intra-departmental mail:

Shaw Stiller, Esq. (Attorney for Respondent Department of Community Affairs)

Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd.

Tallahassee, Florida 32399-2100

Cari Roth General Counsel

Department of Community Affairs 2555 Shumard Oak Blvd.

Tallahassee, Florida 32399-2100

Docket for Case No: 98-000701GM

Orders for Case No: 98-000701GM