STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA WILDLIFE FEDERATION and ) COLLIER COUNTY AUDUBON SOCIETY, )

)

Petitioners, )

)

vs. ) Case No. 00-0540GM

) COLLIER COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

) JAMES A. BROWN, JR., AS TRUSTEE ) OF THE EAST NAPLES LAND )

COMPANY; BARRON COLLIER )

PARTNERSHIP; COLLIER ) ENTERPRISES, LTD.; CONSOLIDATED ) CITRUS LIMITED PARTNERSHIP; ) PACIFIC TOMATO GROWERS; ALICO, ) INC.; and JACK PRICE AND ) RUSSELL PRIDDY, INDIVIDUALLY ) AND JOINTLY AS EASTERN COLLIER ) PROPERTY OWNERS, )

)

Intervenors. )

)

RECOMMENDED ORDER

A formal hearing was held in this case before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on June 12 through 14, 2000, in Naples, Florida.

APPEARANCES

For Petitioners: Thomas W. Reese, Esquire

2951 61st Avenue, South

St. Petersburg, Florida 33712

For Respondent, Collier County:

Martha Harrell Chumbler, Esquire Carlton, Fields, Ward, Emmanuel,

Smith & Cutler, P.A. Post Office Drawer 190

Tallahassee, Florida 32302

Marjorie M. Student, Esquire Collier County Attorney's Office 3301 East Tamiami Trail Administrative Building, 8th Floor Naples, Florida 34112-4902

For Respondent, Department of Community Affairs:

Shaw P. Stiller, Esquire Office of the General Counsel

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

For Intervenors, jointly referred to as Eastern Collier Property Owners:

Ernest A. Cox, Esquire Patrick W. Maraist, Esquire

Gunster, Yoakley, Valdes-Fauli & Stewart

777 South Flagler Drive, Suite 500E West Palm Beach, Florida 33401

For Intervenor, James A. Brown, as Trustee of the East Naples Land Company:

C. Laurence Keesey, Esquire

R. Bruce Anderson, Esquire Young, van Assenderp, Varnadoe &

Anderson, P.A.

801 Laurel Oak Drive, Suite 300

Naples, Florida 34108 STATEMENT OF THE ISSUE

At issue in this proceeding is whether the amendments to the Collier County Comprehensive Plan adopted by Ordinance No. 99-82

(the "Interim Amendments") are "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

On November 23, 1999, Collier County (the "County") adopted the Interim Amendments to the Collier County Comprehensive Plan (the "Plan"). The Department of Community Affairs (the "Department") reviewed the Interim Amendments and determined that they were "in compliance" pursuant to Section 163.3184(1)(b), Florida Statutes. On January 4, 2000, the Department published a Notice of Intent to find the Interim Amendments "in compliance."

On January 20, 2000, the Petitioners Florida Wildlife Federation and Collier County Audubon Society (the "Petitioners") filed with the Department a Petition for Hearing, pursuant to Section 163.3184(9), Florida Statutes. The Petitioners' general allegations were that the Interim Amendments are not in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code; are inconsistent with other provisions of the Plan; and are not supported by data and analysis. Paragraph 5 of the Petition set forth the challenged portions of the Interim Amendments as follows:

1. The portion of the Future Land Use Element (FLUE) entitled Agricultural/Rural Designation (Ag/R), especially including the Natural Resource Protection Area (NRPA) section, the addition of the word "mostly" before the Ag/R phrase "allowable land uses", the Ag/R expansion of existing uses, the Agricultural/Rural-Mixed Use District section, the Rural-Settlement Area District, and the Conservation Designation;

2. The portion of the FLUE entitled Golden Gate Area Master Plan, especially including the insertion of word "conditional", and continuation and expansion of existing uses;

   
   

3. The Future Land Use Map (FLUM) Series designation of NRPAs; and

   
   

4. The failure of Collier County to adopt interim Wildlife Protection and Wetland Protection amendments as required by the Administration Commission’s June 22, 1999, final order; data and analysis; Fla. Admin. Code Chapter 9J-5; Chapter 187, Fla. Stat.; and the Collier Plan.

On January 31, 2000, the proceeding was transferred to the Division of Administrative Hearings for conduct of a formal hearing. On the same date, Barron Collier Partnership; Collier Enterprises, Ltd.; Pacific Tomato Growers; Consolidated Citrus Limited Partnership; Alico, Inc.; Jack Price; and Russell Priddy (collectively referred to as "Eastern Collier Property Owners" or "ECPO") petitioned for leave to intervene. On February 16, 2000, James A. Brown, Jr., as Trustee of the East Naples Land Company (the "Trustee") petitioned for leave to intervene. By orders dated February 24, 2000, and March 8, 2000, respectively, the petitions of ECPO and the Trustee were granted.

Pursuant to the Initial Order, the parties submitted a joint response advising of the pendency of a related case, DOAH Case No. 99-4910GM, which was consolidated with this case. On May 26, 2000, the County and the Department filed a joint motion to sever, on the ground that the plan amendment that was the subject of DOAH Case No. 99-4910GM had been repealed by the County,

mooting that proceeding. The Petitioners did not oppose the motion. The cases were severed and, on June 8, 2000, an order was entered closing the file of the Division of Administrative Hearings in Case No. 99-4910GM.

On June 6, 2000, the County filed a Motion to Strike paragraphs 5(a) and 5(b) of the Petition, to which the Petitioners offered no opposition. Accordingly, the County’s Motion to Strike was granted and paragraphs 5(a) and 5(b) of the Petition were stricken. On June 9, 2000, the Department filed a Motion to Strike paragraph 5(d) of the Petition, to which the Petitioners offered no opposition. Accordingly, the Department’s Motion to Strike was granted and paragraph 5(d) of the Petition was stricken. Thus, the only allegation that remained for determination was that set forth in paragraph 5(c) of the Petition as to whether the Future Land Use Map Series designation of Interim Natural Resource Protection Areas (the “Interim NRPAs”) was “in compliance.”

On June 7, 2000, the County filed a Motion in Limine, seeking to exclude from evidence any exhibits or testimony offered for the purpose of challenging the legal sufficiency of those plan amendments that merely implement specific remedial measures ordered by the Administration Commission in Department of Community Affairs v. Collier County, Case No. AC-99-002

(June 22, 1999)(the "1999 Final Order"). The Petitioners filed a written response in opposition, and the parties presented oral

argument at the outset of the formal hearing. The undersigned granted the motion at hearing, but provided the parties the opportunity to submit additional written argument by June 26, 2000. Written memoranda were filed by the County, the Department, ECPO, and the Petitioners. The Trustee filed a notice joining in the County's memorandum. On June 29, 2000, the undersigned entered a written order confirming the oral ruling granting the motion. The Petitioners filed a motion for reconsideration, which was denied by an order entered on July 28, 2000.

On June 9, 2000, the Department filed a Motion to Strike, seeking a ruling that this proceeding was not the appropriate forum to determine whether the County has complied with the 1999 Final Order. The Petitioners did not oppose the motion, which was granted at the outset of the hearing.

On June 9, 2000, the parties filed a Joint Prehearing Stipulation. Joint Exhibits 1 through 7 were offered and admitted at the outset of the hearing.

The Petitioners presented the testimony of Charles Gauthier, chief of the bureau of local planning for the Department; Robert Mulhere, planning director for the County; William Lorenz, natural resources director for the County; James Beever, biological scientist for the Florida Fish and Wildlife Conservation Commission; and Gary Beardsley, environmental consultant. Mr. Beever was accepted as an expert in wildlife

biology, wildlife management, and wetland and estuarine ecology. Mr. Beardsley was accepted as an expert in wildlife biology and wetland ecology. The Petitioners' Exhibits 1 through 12, 14 through 16, and 18 through 24 were accepted into evidence. The Petitioners' Exhibit 13 was admitted with a stipulated modification. The Petitioners' Exhibit 17 was offered but not admitted.

The County recalled Mr. Mulhere and Mr. Lorenz as its only witnesses. The County's Exhibit 1 was accepted into evidence.

The Department presented the testimony of Bob Cambric, its growth management administrator. The Department's Exhibit 1, Mr. Cambric's resume, was admitted into evidence.

ECPO presented the testimony of Tim Durham, director of environmental services for Wilson Miller; Tom Jones, director of governmental affairs and environmental resources for Barron Collier Partnership; and Ross McWilliams, environmental consultant. ECPO Exhibits 1, 3, 6, 18 through 25, and 30 were admitted into evidence.

The Trustee presented the testimony of Robert Duane, accepted as an expert in land use planning. The Trustee's Exhibits 1 through 5 and 13 were admitted into evidence.

A transcript of the hearing was ordered. The Transcript was filed with the Division of Administrative Hearings on

September 26, 2000. All parties timely filed proposed recommended orders, either within the 21-day period specified in

the order of September 7, 2000, or pursuant to extension requests that were granted without objection. On October 17, 2000, the Petitioners filed a motion to extend the page limit for its proposed recommended order. No party objected to the motion, which is hereby granted.

FINDINGS OF FACT

1. The Parties

   
   

   1. The Petitioners each own property and operate businesses in Collier County. Each Petitioner has members who reside in Collier County. Each Petitioner submitted oral comments to the County regarding the Interim Amendments during the period between transmittal and adoption. The Petitioners timely filed their Petition in this proceeding. The Petitioners are "affected persons" pursuant to Section 163.3184(1), Florida Statutes, and have standing to bring this proceeding.

   2. The County is the local government whose land use amendment is at issue in this proceeding.

   3. The Department is the state land planning agency with the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes.

   4. James A. Brown, as Trustee of the East Naples Land Company, owns property in the County and submitted comments to the County regarding the Interim Amendments during the adoption process.

   5. Barron Collier Partnership owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process.

   6. Collier Enterprises, Ltd. owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process.

   7. Consolidated Citrus Limited Partnership owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process.

   8. Pacific Tomato Growers owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process.

   9. Alico, Inc. owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process.

   10. Jack Price owns property, resides and operates a business in the County, and submitted comments to the County regarding the Interim Amendments during the adoption process.

   11. Russell Priddy owns property, resides and operates a business in the County, and submitted comments to the County regarding the Interim Amendments during the adoption process.

2. Background

   
   

   1. On April 6, 1996, the County adopted an Evaluation and Appraisal Report ("EAR") for its Plan. Each local government is

      required to adopt an EAR once every seven years, assessing its progress in implementing its comprehensive plan. Section 163.3191(1), Florida Statutes. The local government must then amend its comprehensive plan to reflect the data and analysis and recommendations in the EAR. Section 163.3191(10), Florida Statutes. The County adopted its EAR-based amendments on November 14, 1997.

   2. The Department reviewed these EAR-based amendments, found that they did not comply with state law, and on December 24, 1997, published a Notice of Intent to find the

      amendments not "in compliance." The Department then instituted administrative proceedings against the County pursuant to Section 163.3184(10), Florida Statutes. The Florida Wildlife Federation and the Collier County Audubon Society intervened in support of the Department's original not "in compliance" determination.

   3. A formal administrative hearing was held over a five- day period in May 1998. On March 19, 1999, a recommended order was entered recommending that all of the challenged EAR-based amendments be determined not "in compliance." The recommended order was forwarded to the Administration Commission for final agency action pursuant to Section 163.3184(10)(b) and (11), Florida Statutes.

   4. The Administration Commission entered its Final Order on June 22, 1999. The 1999 Final Order directed the County to take specific remedial actions that would bring the comprehensive

      plan into compliance, including: rescinding the EAR-based amendments that were not in compliance; adopting certain specifically described remedial amendments; undertaking a comprehensive assessment of all lands in the County designated in the comprehensive plan as Agricultural/Rural, the Big Cypress Swamp Area of Critical State Concern, conservation lands outside the urban boundary, and South Golden Gate Estates (hereinafter referred to as the “Assessment”); and establishing interim development provisions during the Assessment period, including a moratorium on certain types of development, and the designation and mapping of certain specified NRPAs.

   5. On November 23, 1999, the County adopted the Interim Amendments, intended to establish the interim development restrictions and provide for the Assessment ordered by the 1999 Final Order.

   6. As set forth in detail in the June 29, 2000, order granting the County's Motion in Limine, to the extent that the County merely enacted measures specifically ordered by the Administration Commission, those measures are not within the purview of this proceeding. Only those Interim Amendments that incorporate some measure of County discretion are subject to full "in compliance" analysis.

3. The Interim Amendments

   
   

   1. Policies 4.9 and 4.10 of the Future Land Use Element of the Plan, enacted as part of the Interim Amendments, provide:

      Policy 4.9:

      
      

      Prepare a Rural and Agricultural Area Assessment, or any phase thereof, and adopt plan amendments necessary to implement the findings and results of the Assessment, or any phase thereof, pursuant to the Final Order (AC-99-002) issued by the Administration Commission on June 22, 1999. The geographic scope of the assessment area, public participation procedures, interim development provisions, and the designation of Natural Resource Protection Areas on the Future Land Use Map are described in detail in the Agricultural/Rural Designation Description Section.

      Policy 4.10:

      
      

      Public participation and input shall be a primary feature and goal of the planning assessment effort. Representatives of state and regional agencies shall be invited to participate and assist in the Assessment.

      The County shall ensure community input through each phase of the Assessment which may include workshops, public meetings, appointed committees, technical working groups, and established advisory boards including the Environmental Advisory Committee and the Collier County Planning Commission in each phase of the Assessment.

   2. The Interim Amendments also added the following language to the Future Land Use Designation Description Section, under the "Rural & Agricultural Area Assessment" section of Section II, entitled "Agricultural/Rural Designation:"

      The Governor and Cabinet sitting as the Administration Commission, on June 22, 1999, issued the Final Order (AC-99-002) pursuant to Section 163.3184(10)(b), Florida Statutes, in Division of Administrative Hearing Case No. 98-0324GM. Pursuant to the Order, Collier County is required to prepare a Rural and Agricultural Assessment (Assessment).

      This Assessment may be phased. The

      Geographic Scope of the Assessment Area shall be as follows:

      
      

      Includes: All land designated Agricultural/Rural

      Big Cypress Area of Critical State Concern Conservation lands outside the Urban

      Boundary

      South Golden Gates Estates

      
      

      Excludes: All Urban designated areas Northern Golden Gate Estates

      The Settlement District

      
      

      The Assessment, or any phase thereof, shall be a collaborative, community-based effort with full and broad-based public participation and assistance from applicable State and Regional agencies. At a minimum, the Assessment must identify the means to accomplish the following:

      
      

      Identify and propose measures to protect prime agricultural areas. Such measures should prevent the premature conversion of agricultural lands to other uses.

      
      

      Direct incompatible uses away from wetlands and upland habitat in order to protect water quality and quantity and maintain the natural water regime as well as to protect listed animal and plant species and their habitats.

      
      

      3. Assess the growth potential of the Area by assessing the potential conversion of rural lands to other uses, in appropriate locations, while discouraging urban sprawl, directing incompatible land uses away from critical habitat and encouraging development that utilizes creative land use planning techniques including, but not limited to, public and private schools, urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions and mixed use development. The Assessment, or any phase thereof, shall recognize the substantial advantages of innovative approaches to development which may better serve to protect environmentally sensitive areas, maintain the economic

      viability of agricultural and other predominantly rural land uses, and provide for the cost efficient delivery of public facilities and services.

      
      

   3. At the time of the hearing, the County had already commenced the process of conducting the Assessment. Two citizen advisory committees have been organized, each with responsibility for developing recommended land management policies for a specific geographical area within the scope of the Assessment. The Rural Fringe Committee is focusing its attention on that portion of the Assessment area closest to the west coast urban boundaries. The Rural Lands Committee is focusing on the largely agricultural lands in eastern Collier County.

   4. Unless the Administration Commission modifies the schedule set forth in the 1999 Final Order, the comprehensive plan amendments resulting from the Assessment must take effect on or before June 22, 2002.

   5. In addition to providing for the Assessment, the Interim Amendments impose additional restrictions on the use of land within the Assessment area while the Assessment is underway. These "Interim Development Provisions for the Agricultural/Rural Assessment Area" provide:

      Amendments based on the Assessment shall be completed by June 22, 2002. Residential and other uses in the Area for which completed applications for development approval, rezoning, conditional use, subdivision approval, site plan approval, or plats were filed with or approved by Collier County prior to June 22, 1999, shall be processed and considered under the Comprehensive Plan

      as it existed on June 22, 1999. If the County elects to address a specific geographic portion of the Area as a phase of the Assessment, the interim land use controls shall be lifted from the specific geographic area upon completion of the applicable phase of the Assessment and the implementing Comprehensive Plan amendments for that phase becoming effective. Until the Assessment is complete and Comprehensive Plan amendments to implement the Assessment, or any phase thereof, are in effect, the only land uses and development allowable in the area shall be those set forth in the Agricultural/Rural Mixed Use District and the Land Development Code (Section 2.2.2) in effect on June 22, 1999 for the Agricultural/Rural District, except the following uses are prohibited and shall not be allowed:

      1. New golf courses or driving ranges;

         
         

      2. Extension or new provision of central water and sewer service into the Area;

         
         

      3. New package wastewater treatment plants;

         
         

      4. Residential development except farmworker housing or housing directly related to support farming operations, or staff housing (12 du/ac) and other uses directly related to the management of publicly-owned land, or one single-family dwelling unit per lot or parcel created prior to June 22, 1999;

         
         

      5. Commercial or industrial development except gas and telephone facilities, electric transmission and distribution facilities, emergency power structures, fire and police stations, emergency medical stations;

         
         

      6. Transient residential such as hotels, motels, and bed and breakfast facilities;

         
         

      7. Zoo, aquarium, botanical garden, or other similar uses;

         
         

      8. Public and private schools;

      9. Collection and transfer sites for resource recovery;

         
         

      10. Landfills;

          
          

      11. Social and fraternal organizations;

          
          

      12. Group care facilities;

          
          

      13. Sports instructional schools and camps;

          
          

      14. Asphalt and concrete batch making plants; and

          
          

      15. Recreational vehicle parks.

          These interim development standards shall not affect or limit the continuation of existing uses. Existing uses shall also include those uses for which all required permits have been issued, or uses for which completed applications have been received by the County prior to June 22, 1999. The continuation of existing uses shall include expansions of those uses if such expansions are consistent with or clearly ancillary to the existing use and do not require a rezoning or comprehensive plan amendment.

   6. These interim development standards mirror those ordered by the Administration Commission in the 1999 Final Order.

   7. The Interim Amendments also designated certain areas as Interim NRPAs and added additional limitations on the development allowed within those areas. The Interim NRPAs and accompanying restrictions are as follows:

      The following areas shall be generally mapped and identified as Natural Resource Protection Areas (NRPAs): Camp Keais Strand, CREW Lands, Okaloacoochee Slough, Belle Meade and South Golden Gate Estates.

      
      

      Natural Resource Protection Areas (NRPAs) are designated on the Future Land Use Map:

      1. Within these areas, only agriculture and directly-related uses and one single-family dwelling unit per parcel or lot created prior to June 22, 1999, shall be allowed;

         
         

      2. These interim development standards shall not affect or limit the continuation of existing uses. Existing uses shall also include those uses for which all required permits have been issued, or uses for which completed applications have been received by the County prior to June 22, 1999. The continuation of existing uses shall include expansions of those uses if such expansions are consistent with or clearly ancillary to the existing use and do not require a rezoning or comprehensive plan amendment;

         
         

      3. The general location shall be identified on a map as the interim NRPAs and shall be refined as actual data and analysis is made available during the Collier County Rural and Agricultural Area Assessment.

         
         

   8. Objective 1.3 of the Conservation and Coastal Management Element of the Interim Amendments further explains the County's purpose in establishing the Interim NRPAs and how they would be treated during the Assessment:

      Pursuant to Administration Commission Final Order AC-99-002 dated June 23, 1999, complete the phased delineation, data gathering, management guidelines and implementation of the NRPA Program as part of the required Collier County Rural and Agricultural Assessment. The purpose of the NRPAs will be to assist State and Federal agencies’ efforts to protect endangered or potentially endangered species (as listed in current “Official List of Endangered and Potentially Endangered Fauna and Flora Florida”, published by the Florida Game and Fresh Water Fish Commission, the predecessor agency of the Florida Fish and Wildlife Conservation Commission) and their habitats.

      Pursuant to the Administration Commission Final Order, the County has mapped and identified the Camp Keais Strand, CREW Lands, Okaloacoochee Slough, Belle Meade and South Golden Gate Estates as NRPAs, with the express understanding that during the Rural and Agricultural Assessment (Assessment) required by the Final Order, the goal of assisting in the protection of endangered species and their habitat will be further addressed and that appropriate protection measures will be incorporated into the comprehensive plan amendments to be adopted at the conclusion of the Assessment. In the interim, and during the Assessment, a development moratorium as set forth in the Final Order and in Ordinance 99-77 will be in place until comprehensive plan amendments are adopted. The County has determined that the development moratorium, the NRPA boundaries approved November 23, 1999, and the additional restrictions that apply within the existing Area of Critical State Concern provide sufficient protection for these resources on an interim basis until adoption of the final comprehensive program to protect these resources. In selecting the final comprehensive program the County, as part of the Assessment, will evaluate the NRPA program and its criteria and implementation as well as other programs which may better provide adequate protection to the resources.

   9. In addition to the Interim NRPAs, the County determined that certain other areas within the Assessment area should be specifically addressed and evaluated as part of the Assessment, thus creating "special study areas" ("SSAs") pursuant to Policy

      1. as follows:

         
         

         The Program will, subject to completion of the Assessment and adoption of the comprehensive plan amendments, include the following:

         
         

         1. Identification of the NRPAs in map form as an overlay to Future Land Use Map.

      Pursuant to the Final Order, the general areas of Camp Keais Strand, CREW Lands, Okaloacoochee Slough, Belle Meade and South Golden Gate Estates have been mapped and identified as NRPAs on the Future Land Use Map. The areas shall be further refined as the Assessment is implemented as a collaborative and community-based effort.

      
      

      All available data shall be further considered and refined during the Assessment to determine the final boundaries of these NRPAs. As part of the Assessment, the County shall evaluate the merits of including additional areas into these boundaries including, but not limited to, the area of Northern Belle Meade, the area known as the “Stovepipe” to the north, northwest and northeast of the Okaloacoochee Slough and the area southwest of the Okaloacoochee Slough to the southeastern portion of the Camp Keais Strand which is south of Oil Well Road (CR 858). These additional study areas are shown on the Future Land Use Map. Within these study areas, the following shall be the primary focus of additional study:

      North Belle Meade Study Area:

      
      

      1. examine the extent to which existing agricultural operations, improvements and facilities have impacted water flow and quality, wetlands and habitat for the Florida panther and other listed species;

         
         

      2. examine the impacts of abutting urban and Estates development;

         
         

      3. examine access into the area and connectivity to other habitat as it relates to the Florida panther;

         
         

      4. examine opportunities for restoration of flow-ways, buffering from abutting development and improvements for listed species habitat through actions to include consideration of the addition of underpasses to Interstate 75;

      5. examine the impacts of potential earth mining activities on the above resources; and

         
         

      6. examine whether use of transfer of development rights would be appropriate in this area and, if so, whether there should be any restrictions on their use;

         
         

      7. examine the possibility of public acquisition of these properties.

      
      

      Stovepipe Study Area

      
      

      1. examine the level of existing and permitted agricultural improvements and impacts on listed species and their habitats;

         
         

      2. examine whether the existing Area of Critical State Concern program affords sufficient protection to listed species and their habitat;

         
         

      3. examine the possibility of acquisition of these properties by State or Federal programs, including partial acquisition programs, an example of which would be conservation easements;

         
         

      4. examine whether use of transfer of development rights would be appropriate in this area and if so, whether there should be any restrictions on their use;

         
         

      5. examine and analyze the Florida panther’s use of agricultural lands and whether such agricultural lands constitute critical habitat for the species; and

         
         

      6. examine and analyze whether any lands should be restored.

      
      

      Oil Well Road (CR 858) Study Area

      
      

      1. examine the extent to which existing agricultural and mining operations, improvements and facilities have impacted listed species and their habitat;

         
         

      2. examine documented movement of the Florida panther in the area;

      3. examine and analyze the Florida panther’s utilization of agricultural lands and whether such agricultural lands constitute critical habitat for the species;

         
         

      4. examine whether use of transfer of development rights would be appropriate for this area and, if so, whether there should be any restrictions on their use: and

         
         

      5. determine whether the east/west wildlife corridor provided by the Florida Panther National Wildlife Refuge and the Big Cypress National Preserve provides sufficient connectivity to protect the species.

      
      

      In addition to the moratorium referenced above, the County shall give notice to the Florida Department of Community Affairs if all applications to develop or otherwise impact the above special study areas.

      
      

      * * *

      
      

      The County recognizes that the NRPA program is not the only mechanism to protect significant environmental resources and that the NRPAs being established at this time are of an interim nature in conjunction with the development moratorium required by the Final Order. As a consequence, the designation of an area as a NRPA or as part of a special study area is not intended to affect property valuation on specific parcels. It is anticipated that the Assessment will address all of the issues identified above and that the resulting comprehensive plan amendments will provide resource protection measures best suited to meet the goals and objectives of this comprehensive plan.

4. Establishment of Interim NRPA Boundaries

   
   

   1. The 1999 Final Order directed the County to adopt five areas as Interim NRPAs: the Camp Keais Strand; the CREW Lands; the Okaloacoochee Slough; Belle Meade; and South Golden Gate Estates. The 1999 Final Order does not provide a map or legal

      description of these five areas. Even aside from the 1999 Final Order, there are no maps or legal descriptions to describe precisely the boundaries of these areas. The evidence established that there is a general understanding of the location of these areas, but that the County necessarily exercised discretion in defining the boundaries of these Interim NRPAs.

   2. The term "Natural Resource Protection Area" is not defined in federal or state laws or regulations. The term is a creation of the Collier County Comprehensive Plan, and was first included in the Conservation and Coastal Management Element ("CCME") of the 1989 Plan.

   3. The 1989 Plan contained the adopted Goals, Objectives and Policies governing land use and development in the County. The 1989 Plan also included data and analysis that was not adopted as a binding part of the Plan.

   4. The unadopted data and analysis in the 1989 Plan included a support document for the CCME. This support document set forth the standards for NRPAs. It designated NRPAs as "eco- systems having extremely important ecological functions," and ranked four subcategories according to "the degree of restrictiveness of protection afforded":

      Estuaries and Coastal Barrier Areas Water Protection and Conservation Areas Critical Ecological Corridors

      Rare, Unique and Endangered Habitats.

   5. William Lorenz, the County's natural resources director, testified that the County looked at these categories to provide general guidelines for the functions of NRPAs.

   6. The County employed an iterative method in developing the Interim NRPA boundaries, with County staff developing, reviewing, and modifying draft maps. Mr. Lorenz testified that there was a good deal of debate among staff members as to the location of the Interim NRPA boundaries.

   7. The County also sought the assistance of outside agencies, including the Florida Fish and Wildlife Conservation Commission. James Beever, a biological scientist, was the Conservation Commission's principal liaison with the County for purposes of the Interim NRPA determination.

   8. Mr. Beever testified that he did not use the 1989 Plan in making his recommendations because the County asked him to use the best available scientific information, which was not necessarily included in the 1989 Plan. Mr. Beever also testified that he was unfamiliar with the County's development moratorium for rural Collier County at the time he developed his recommendations.

   9. The Conservation Commission, through Mr. Beever, recommended a procedure for the delineation of NRPAs:

      1. Start with the existing proposed land acquisition boundaries or Florida Panther Recovery Plan boundaries for the designated areas. For the Southern Golden Gate Estates, this will be all that is needed to define that NRPA.

      2. For all other areas, such as the Corkscrew Regional Ecosystem Watershed (CREW), expand the NRPA beyond the acquisition boundary when there is existing connected native habitats. Roadways alone do not sever connection, since wildlife underpasses can be incorporated in NRPA criteria. This would "pick up" habitat continua that were not in the original boundaries that may have been drawn strictly on straight section lines. Some examples would be to include:

         
         

         1. undeveloped areas of Northern Belle Meade, above Interstate 75, that were included in the original study performed by Kim Dryden and myself,

            
            

         2. connecting the proposed Winding Cypress DRI to the Southern Belle Meade, and

            
            

         3. including the entire Bird Rookery Swamp system attached to CREW.

         
         

   10. County staff considered these recommendations and other materials, and arrived at seven "General Guidelines for Delineating NRPA Boundaries":

       1. Identify major wetlands systems and regional flow-ways.

          
          

       2. Incorporate areas having upland native habitat contiguous to the identified major wetland systems and regional flow-ways.

          
          

       3. Provide for areas containing listed species habitats that are contiguous to the identified wetland systems and regional flow- ways.

          
          

       4. Include areas that are identified on the 1999 CARL Acquisition List, unless the area is severely impacted.

          
          

       5. Provide connections to other existing conservation areas.

       6. Include areas with minimal fragmentation from existing residential developments and transportation systems.

          
          

       7. Provide sufficient land area to buffer native habitats from intensive land uses.

          
          

   11. Applying these criteria, the County transmitted to the Department proposed Interim NRPAs that included 140,564 acres. Almost 125,500 acres of this land is wetlands, accounting for 13% of all wetlands in Collier County.

   12. One of the Petitioners' chief contentions was that the boundaries of the Interim NRPAs adopted by the County were significantly smaller than the boundaries proposed by County staff. The Petitioners did not object to any of the lands actually included in the Interim NRPAs; rather, they believed that more lands should be added to them.

   13. As to the Camp Keais Strand and Okaloacoochee Slough NRPAs, the biggest point of debate in the County was the amount of agricultural lands that should be contained in the Interim NRPAs. This was debated before the Board of County Commissioners and the Planning Commission, as well as the Environmental Advisory Council. County staff’s initial proposal included more agricultural fields in the Interim NRPAs than the County finally adopted.

   14. The County ultimately excluded intensive agricultural lands and mining pits from the Interim NRPA delineations.

   15. As to the Camp Keais Strand NRPA, the County ultimately excluded extensive farm and row crop fields, as well as active

       storm water management systems located on these agricultural lands.

   16. Mr. Lorenz testified regarding County staff’s initial recommended NRPAs. County staff initially relied heavily on the Closing the Gaps report and its derivative materials, discussed below. Staff also initially relied upon the South Florida Water Management District’s "Florida Land Use Coverage Classification System" ("FLUCCS"), which is a display of land coverage information from the 1994-1995 database. Staff also coordinated with Mr. Beever, as noted above.

   17. County staff initially drew their proposed Interim NRPA boundaries along section and quarter section lines. Mr. Lorenz acknowledged that natural features typically do not follow section and half section lines, and that the boundaries finally selected more closely reflect natural features rather than legal descriptions.

   18. ECPO provided County staff with aerial photographs of the land in the eastern Collier County, and Mr. Lorenz had discussions with people who actually farmed that land. The information provided by ECPO was used in determining the interim NRPA boundaries that the County finally adopted.

   19. One area eliciting a great deal of evidence at hearing was North Belle Meade, which the FLUCCS map indicates is 90% wetlands. North Belle Meade was excluded from the interim NRPAs for several reasons. First, it is surrounded on three sides by

       areas of accelerating urban development and is bordered by I-75 on the fourth side. Mr. Beever conceded that the development of North Golden Gate Estates, to the east and north, will greatly reduce the habitat value of North Belle Meade.

   20. Mr. Beever also conceded that I-75 is a barrier in the landscape continuum between North Belle Meade and the Belle Meade interim NRPA. Based on his general experience, Mr. Beever did not believe that the interstate prevents panthers from crossing from one area to the other, but he admitted that he had no specific information regarding panthers crossing I-75 between North Belle Meade and Belle Meade. North Belle Meade has not been identified as a habitat conservation area for the Florida panther by the Florida Fish and Wildlife Conservation Commission.

   21. Another reason for the exclusion of North Belle Meade was the large number of individual landowners and small parcels platted within the area prior to June 22, 1999. The 1999 Final Order provided that developments approved prior to June 22, 1999, would not be subject to the use restrictions otherwise imposed by NRPA designation. This provision led the County to exclude from the Interim NRPAs those areas with approved developments. In North Belle Meade, landowners could permissibly build a single family residence on each parcel platted before that date, even if the area were designated as an interim NRPA, thus minimizing the utility of the designation.

   22. Finally, hydrologic changes have already had significant impact on the native vegetation of North Belle Meade, distinguishing its character from that of those areas adopted as interim NRPAs by the County.

   23. The areas designated as Interim NRPAs are large, connected systems. The criteria emphasized connecting areas with native habitat cover, which led to the exclusion from the NRPAs of active agricultural areas located on the outer edges of areas being considered for inclusion.

   24. Both Gary Beardsley and Mr. Beever testified that certain wildlife, such as the Florida panther and wading birds, use agricultural areas as habitat, particularly where there is a mosaic of agriculture mixed with native vegetation. They also testified that there is no hard data as to the extent to which such species rely on agricultural areas, or as to the type of agricultural uses that enhance, rather than degrade, the habitat value of lands.

   25. Mr. Beever disagreed with the Interim NRPA boundaries established by the County, but he also testified that he would not recommend including within those boundaries areas that have been converted from native to non-native vegetation, particularly active agriculture with heavy hydrological maintenance.

   26. The Department reviewed the transmitted NRPA boundaries and issued its Objections, Recommendations, and Comments ("ORC") Report. The ORC Report objected to the exclusion of three areas

       that appeared to meet the requirements for Interim NRPA designation: North Belle Meade; the "Stovepipe" area to the north, northwest, and northeast of the Okaloacoochee Slough; and the area southwest of the Okaloacoochee Slough that links the Slough to the southeastern portion of the Camp Keais Strand.

   27. The County responded by establishing the three SSAs described in Finding of Fact 26 above, covering North Belle Meade, the Stovepipe, and Oil Well Road. The SSAs correspond to the exclusions noted in the ORC Report's objections. Within these areas, the County recognizes the potential for significant natural resource issues, but also recognizes the impact of agricultural and mining activities on those resources.

5. The Petition

   
   

   1. The Petitioners allege that the Interim NRPA delineations are not "in compliance" for the following reasons:

      1. They are not supported by data and analysis, as required by Section 163.3177(6)(a),(8), and (10)(e), Florida Statutes and Rule 9J-5.005(2)(a), Florida Administrative Code;

         
         

      2. They are not supported by data and analysis regarding the suitability of authorized land development;

         
         

      3. They fail to ensure adequate protection of natural resources;

         
         

      4. They are internally inconsistent with the Collier County Comprehensive Plan, particularly CCME Objectives 1.1 and 1.3, and Policy 1.3.1; and

      5. They are inconsistent with the State Comprehensive Plan, particularly Section 187.201(10)(a),(10)(b)(1),(10)(b)(3), (10)(b)(5), and (10)(b)(7), Florida Statutes.

      
      

6. Data and Analysis

1. The five interim NRPAs specified by the 1999 Final Order all lie outside the urban boundary of the County. The privately owned land in rural Collier County is predominantly in active agricultural use.

2. Tom Jones, director of government affairs and environmental resources for Barron Collier Partnership, described rural Collier County as one of the most intensely farmed areas in southwest Florida. Mr. Jones testified that citrus operations have been in place around the Corkscrew Marsh and Lake Trafford since the 1960s, with expansions occurring in the 1980s and again in the 1990s. Tomato and potato cultivation have been in place for decades south of Lake Trafford along the Camp Keais Strand. Citrus, pasture, and row crops have occupied large expanses of rural Collier County since the end of World War II.

3. These operations are conducted on a large scale. Mr. Jones pointed to one phase of citrus planting by Barron

   Collier Partnership that covers 4,500 acres. He also indicated that a single stormwater detention area for a tomato farm covers

   13 square miles.

   
   

4. Publicly owned land is also prevalent in rural Collier County. The area contains Big Cypress National Preserve, the Florida Panther National Wildlife Refuge, Fakahatchee Strand

   State Preserve, Collier Seminole State Park, and the Cape Romano-

   
   

   - Ten Thousand Islands Aquatic Preserve. Approximately 73% of the land in Collier County is either in public ownership or on an active acquisition list.

5. No evidence was presented at the hearing indicating substantial residential development pressure in rural Collier County. Robert Mulhere, the County's planning director, testified that the established use of the land for agriculture has been under pressure for conversion to "upscale master plan residential golf course communities." The 1999 Final Order recognized this pressure, requiring that the Interim Amendments prohibit golf course development during the assessment period.

6. The Petitioners contend that one of the most important sources of data and analysis relating to the wildlife and wildlife habitat of rural Collier County is Closing the Gaps in Florida's Wildlife Habitat Conservation System, a 1994 publication by individuals working for the Florida Game and Fresh Water Fish Commission (now the Florida Fish and Wildlife Conservation Commission).

7. Closing the Gaps was an effort to map the land cover of the entire state, based on computer analysis of Landsat satellite imagery collected from 1985 to 1989. About 2.72 million acres, or 8% of the land area of Florida, was field inspected using a helicopter equipped with a Loran-C unit. The authors stated that, based on field reports, they estimated the overall accuracy

   of the land cover map at 80 to 90%, though they also acknowledged that accuracy varies according to the type of land cover being mapped.

8. Ross McWilliams, an environmental consultant testifying on behalf of ECPO, stated that Closing the Gaps is a "good general document" and contains the best available data to someone looking at Florida from a large scale perspective in terms of land forms and types of species.

9. Closing the Gaps states that the portion of Collier County northwest of the Big Cypress National Preserve, consisting of a "mixture of cypress swamp, hardwood swamp, dry prairie, and pineland represents one of the most important wildlife areas remaining in Florida." Closing the Gaps, p. 174.

10. Closing the Gaps finds that nearly all of the Big Cypress Area of Critical State Concern that is not publicly owned is good habitat for the Florida panther, Florida black bear, and the American swallow-tailed kite. Id.

11. Closing the Gaps reports that the privately owned lands west of State Road 29 and north of I-75 support a stable Florida black bear population, and rates much of the privately owned portion of the Big Cypress area as outstanding potential bear habitat, in terms of proximity to conservation areas, extent of roadless areas, diversity of cover types, and the presence of specific cover types. Closing the Gaps, p. 52, 174.

12. Closing the Gaps states that "quick and aggressive action" is required to save the Florida panther from extinction, and cites the conversion of large areas of rangeland and native land cover to agriculture as one the greatest threats to the continued existence of panther habitat. The report singles out citrus development as a threat to subdivide existing, contiguous panther habitat. Closing the Gaps, p. 68.

13. Among its suggestions for protecting natural resources, Closing the Gaps cites acquisition of privately held lands as the most effective and least controversial method, along with the purchase of lesser rights such as conservation easements. Closing the Gaps also urges local governments to protect valuable habitat through their comprehensive plans. Closing the Gaps, p. 191.

14. ECPO agreed that Closing the Gaps is a useful tool for examining Florida's natural resources in terms of habitat and species at a statewide level in order to determine where there may be gaps in the state's conservation programs. However, ECPO convincingly demonstrated that an effort to base local planning decisions on the large scale satellite imagery utilized by Closing the Gaps is a misuse of that document.

15. The text of Closing the Gaps itself contains disclaimers as to the utility of its satellite maps:

    The maps appearing in this report are intended to provide guidance to decision makers involved in public land acquisition, land use planning, development regulation,

    and other land conservation efforts. The maps represent our best estimate of those Florida lands that require some form of conservation to ensure that biodiversity is maintained for future generations. However, these maps represent only a snapshot of Florida’s conservation needs at one time.

    For example, the vegetation map used to create species distribution maps was based on satellite imagery dated 1985-1989; the species occurrence information is current through 1991-1993, depending on the species; and the database of public land boundaries extends only through 1992. As a consequence, some areas identified for protection may already be in public ownership or may no longer support the habitat features or species predicted to occur there, and the maps should not be incorporated into law or rule as inviolate zones in which no development may occur. Rather, the maps should be used as a layer of information when decisions are made concerning land acquisition, land-use planning, and development regulation.

    Closing the Gaps, p. 1 (Emphasis added).

    
    

16. Another portion of Closing the Gaps restates its limitations as a definitive document for local planning purposes:

    The reader should be aware that the maps represent only a snapshot of Florida’s conservation needs at one point in time. The data on which the maps are based are already out-dated, and they will become increasingly out of date as time goes by. For example, the satellite imagery used for vegetation mapping and habitat modeling was collected between 1985 and 1989. Undoubtedly, some natural areas we identified as needing protection have been destroyed during the time it has taken to collect and analyze the data and publish the results.

    
    

    The temporal nature of the maps has two effects. First, because some areas identified as needing protection may no longer support the habitat features or

    species expected to occur there, these maps should not be incorporated into law or rule as inviolate zones in which no development may occur. Rather, the maps should be used as a layer of information in the making of decisions concerning land acquisition, land- use planning, and development regulation.

    Second, as time goes by, new parcels of land come into public ownership, new data become available on the locations of rare species, and the character of the Florida landscape changes. As a result, project maps are continually being updated with new information, and the latest version of the maps actually resides in the computer at the Office of Environmental Services. Therefore, before using the maps in this report for detailed management decisions, users should contact the Office of Environmental Services at the address below for the latest information on lands currently recommended for protection.

    Closing the Gaps, p. 9 (Emphasis added).

    
    

17. Mr. Beever testified that he used Closing the Gaps in making his recommendations on behalf of the Florida Fish and Wildlife Conservation Commission, but conceded that aerial photographs provided by ECPO's consultants were more up to date and accurate.

18. The evidence presented by ECPO demonstrated not only that some of the information in the Closing the Gaps maps is out of date, but that it was inaccurate even at the time the satellite images were made as applied to the relatively small scale of the areas at issue. Parts of the North Camp Keais area that were labeled "other vegetation" in Closing the Gaps were actually in agricultural use.

19. Tim Durham of Wilson Miller, ECPO's consultant, testified that the inaccuracies were a function of attempting to apply habitat models based on the large scale satellite maps in Closing the Gaps to what is actually on the ground in a relatively small area. Mr. Durham stated that "it's almost like static on a T.V. screen. You’re starting to see a bunch of things that aren't really there. The habitat models were assuming habitats that weren't really out there."

20. Mr. Durham found that the satellite imagery in Closing the Gaps provided inaccurate data that some of the agricultural lands contained four or five different habitat types in a tight mosaic. This data would cause a computer model erroneously to classify these agricultural lands as good native habitat.

21. Mr. Beever noted that the Closing the Gaps data is being updated. However, the update continues to assume the correctness of the earlier data, leading the unwary reader to assume that large areas of natural habitat have been converted to agriculture between the years 1986 and 1996, though in fact the lands at issue have been in agricultural use throughout this period.

22. Ross McWilliams, ECPO's environmental consultant, conducted an analysis of Closing the Gaps in comparison to what is actually on the lands in eastern Collier County and concluded that the vegetative land cover set forth in Closing the Gaps contained extensive errors.

23. Mr. McWilliams found that Closing the Gaps mapped thousands of acres of agricultural lands as "scrub and brush." Mr. McWilliams visited 14 specific sites in eastern Collier County rural areas, and found that the "signature" (i.e., the identification of the predominant type of land cover) set forth in Closing the Gaps was incorrect for all 14 sites.

24. The Petitioners also presented evidence that the Interim Amendments do not afford adequate protection to listed species. The exhibits presented by the Petitioners to establish the location and extent of Collier County habitat for the red cockaded woodpecker, wading bird rookeries, bald eagle, black bear, and Florida scrub jay were all based on Closing the Gaps data and thus not entirely reliable. As noted above, Closing the Gaps is not a reliable tool for establishing land cover on the small scale required for local planning purposes. Its findings as to habitat and potential habitat were based on its land cover findings, and therefore also suspect.

25. The Petitioners also presented panther telemetry data to indicate the movement of the Florida panther in Collier County. The telemetry data persuasively demonstrated the presence of panthers in the area, but were inconclusive to establish the number of panthers moving through the area or their precise activity patterns. One of the purposes of the Assessment is to examine the telemetry data in order to better understand

    the panthers' movement and plan for their protection in the final plan amendments.

26. This points to the overall conceptual problem with the Petitioners' case: it is premature. The Petitioners challenge the Interim NRPAs as not based on a thorough assessment of the County's natural resources, when the 1999 Final Order contemplates that the Interim NRPAs are a necessary prelude to that very assessment.

27. The 1999 Final Order directed that the Assessment will cover virtually all of rural Collier County, and will have a three-part purpose:

    1. identify and propose measures to protect prime agricultural areas and prevent premature conversion of agricultural lands to other uses;

       
       

    2. direct incompatible uses away from wetlands and upland habitat in order to protect water quality and quantity, maintain the natural water regime, and protect listed animal and plant species and their habitats; and

       
       

    3. assess the growth potential of the Assessment area by assessing the potential conversion of rural lands to other uses, in appropriate locations, while discouraging urban sprawl, directing incompatible land uses away from critical habitat and encouraging development that utilizes creative land use planning techniques, recognizing the substantial advantages of innovative approaches to development that may protect environmentally sensitive areas, maintain the economic viability of agricultural and other predominantly rural land uses, and provide for the cost-efficient delivery of public facilities and services.

28. The concerns raised by the Petitioners at this hearing are the same concerns voiced by the 1999 Final Order, which sets forth the procedures the County is to follow. The Petitioners are in effect asking the County to reach its conclusions as to natural resources issues before it undertakes the Assessment mandated by the Final Order. This request is impracticable.

29. The testimony at the hearing established a broad scope for the Assessment and the amendments that may arise therefrom. The Assessment may result in the expansion of the Interim NRPA boundaries. It may result in the creation of new NRPAs. The County may arrive at a solution for protecting its natural resources that does not involve the designation of NRPAs.

30. Based upon the data available to the County, and keeping in mind their transitional nature, the boundaries defined for the Interim NRPAs are at least fairly debatable. The concerns raised by the Petitioners will be addressed during the Assessment period. Once the Assessment is completed, the Petitioners will have the opportunity to contest the County's finished work product.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction

       
       

31. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sections 120.569, 120.57(1), 163.3184(9), and 163.3187(3), Florida Statutes.

    1. Standing

       
       

32. Any "affected person" may participate in proceedings challenging proposed plans and plan amendments under the Act. Sections 163.3184(9), 163.3184(10), and 163.3187(3)(a), Florida Statutes (1997).

33. The terms "affected person" for purposes of Sections 163.3184 and 163.3187, Florida Statutes, are defined in Section 163.3184(1)(a), Florida Statutes:

    1. "Affected person" 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 . . . . 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.

34. The Petitioners demonstrated that they had standing to institute and participate in this proceeding pursuant to Sections 163.3184 and 163.3187, Florida Statutes.

35. The evidence also demonstrated that ECPO and the Trustee had standing to participate in this proceeding.

    1. Burden and Standard of Proof

       
       

36. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in any proceeding before the Division of Administrative Hearings. Young v. Department of Community Affairs, 625 So. 2d

831 (Fla. 1993); Antel v. Department of Professional Regulation,

522 So. 2d 1056 (Fla. 5th DCA 1988); and Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

91. Sections 163.3184(9), 163.3184(10), and 163.3187(3)(a),

Florida Statutes, impose the burden of proof on the person challenging amendments to a local government's comprehensive plan. Therefore, the Petitioners had the burden of proof in this proceeding. See Young v. Department of Community Affairs, 626 So. 2d 831 (Fla. 1993).

1. Section 163.3184(9), Florida Statutes, imposes the following standard of proof:

   [T]he local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable.

   
   

   Therefore, the Petitioners were required to prove "beyond fair debate" that the Interim Amendments are not "in compliance."

2. The term "fairly debatable" is not defined in the Act or the rules promulgated thereunder. The Supreme Court of Florida has opined, however, that the fairly debatable standard under the Act is the same as the common law "fairly debatable" standard applicable to decisions of local governments acting in a legislative capacity. In Martin County v. Yusem, 690 So. 2d 1288, at 1295 (Fla. 1997), the Court opined:

   The fairly debatable standard of review is a highly deferential standard requiring

   approval of a planning action if reasonable persons could differ as to its propriety.

   
   

   Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court stated further:

   An ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.

   
   

   690 So. 2d at 1295. The Court cautioned, however:

   
   

   even with the deferential review of legislative action afforded by the fairly debatable rule, local government action still must be in accord with the procedures required by chapter 163, part II, Florida Statutes, and local ordinances.

   
   

   Id.

   
   

   1. The Interim Amendments Are "In Compliance"

      
      

3. The ultimate issue in this case is whether the

   
   

   challenged amendments are "in compliance." Sections 163.3184(9) and 163.3187(3), Florida Statutes.

4. The terms "in compliance" are defined in Section 163.3184(1)(b), Florida Statutes, as follows:

   1. "In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, 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] and with the principles for guiding development in designated areas of critical state concern.

5. Section 163.3177(10)(a), Florida Statutes, 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 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.

6. The elements of a local government comprehensive plan must be internally consistent. Section 163.3177(2), Florida Statutes. A comprehensive plan may be amended only in a way that preserves the internal consistency of the plan. Section 163.3187(2), Florida Statutes.

7. The preponderance of the evidence presented neither establishes any inconsistency between the Interim Amendments and Chapter 9J-5, Florida Administrative Code, nor any internal inconsistency between the Interim Amendments and the other elements of the Plan.

8. Comprehensive plans must be based upon appropriate data and, although such data need not be original data, local

   governments are permitted to utilize original data so long as appropriate methodologies are used for data collection. Section 163.3177(8) and (10)(e), Florida Statutes.

9. Rule 9J-5.005(2), Florida Administrative Code, requires that, in order for a plan provision to be "based" upon appropriate data "available on that particular subject at the time of adoption of the . . . plan amendment at issue," the local government must "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." The data must also be the "best available" data "collected and applied in a professionally acceptable manner." Rule 9J- 5.005(2)(a)-(c), Florida Administrative Code.

10. The data and analysis which may support a plan amendment are not limited to those identified or actually relied upon by a local government. Department of Community Affairs v. City of Fort Myers, Case No. ACC-92-002 (Administration Commission Final Order 1992).

11. All data available to a local government in existence at the time of the adoption of a plan amendment may be relied upon to support an amendment in a de novo proceeding. Id. See also Zemel v. Lee County, et al., 15 FALR 2735 (Department of Community Affairs Final Order 1993). Analysis which may support an amendment, however, need not be in existence at the time of the adoption of a plan amendment. Id. Data which existed at the

    time of the adoption of a plan amendment may be subject to new or even first time analysis at the time of an administrative hearing challenging a plan amendment. Id.

12. The evidence admitted at hearing established that there are defects in the data available for determining appropriate NRPA boundaries. Indeed, the paucity of reliable data was one reason that the Assessment was ordered. The County reasonably resorted to the more current data provided by ECPO, in addition to the dated and somewhat inaccurate information in Closing the Gaps and its derivative publications. It is at least fairly debatable that the boundaries established by the County are reasonable, in view of the present state of the data and the on-going Assessment.

13. The Petitioners concede that the lands actually included in the Interim NRPAs provide valuable habitat and contain valuable wetland systems. The Petitioners' contention was that more lands should have been included in the Interim NRPAs. The evidence submitted by the Petitioners was insufficient to establish this contention beyond fair debate.

14. The 1999 Final Order provided that the Interim NRPAs "shall be refined as actual data and analysis is made available." While the conclusion on the basis of the record in this case is that the Interim NRPAs are "in compliance," new data and analysis developed during the Assessment may compel changes in their

    boundaries. The Interim Amendments acknowledge this potential for expansion of the NRPAs in the policies for SSAs.

15. It must be noted that the 1999 Final Order required that only five areas be designated as NRPAs, and the County has designated those five areas. The evidence established that the boundaries drawn by the County around these five areas were at least fairly debatable.

16. The Petitioners argued that the allowance of agricultural uses in NRPAs is not supported by data and analysis, will allow the destruction of natural resources, and is not consistent with the statutory requirement that all land uses carry allowable densities and intensities of use. However, in Environmental Confederation of Southwest Florida, Inc. v. Department of Community Affairs, Final Order No. 97-266-FOF-GM (Department of Community Affairs Final Order 1998), affirmed per curiam, 727 So. 2d 916 (Fla. 1st DCA 1998), the Department held that Section 163.3164(6), Florida Statutes, excludes agriculture from the definition of "development," and thus exempts agriculture from the usual density and intensity standards.

    1. Conclusion.

    
    

17. The evidence in these cases failed to prove by a preponderance of the evidence or beyond fair debate that the Interim Amendments are not "in compliance" as defined in Section 163.3184(1)(b), Florida Statute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the Interim Amendments to be "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.

DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 4th day of December, 2000.

COPIES FURNISHED:

C. Laurence Keesey, Esquire

R. Bruce Anderson, Esquire

Young, van Assenderp, Varnadoe & Anderson, P.A. 801 Laurel Oak Drive, Suite 300

Naples, Florida 34108

Ernest A. Cox, Esquire Patrick W. Maraist, Esquire

Gunster, Yoakley, Valdes-Fauli & Stewart

777 South Flagler Drive, Suite 500E West Palm Beach, Florida 33401-6161E

Shaw P. Stiller, Esquire Office of the General Counsel

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

Thomas W. Reese, Esquire 2951 61st Avenue, South

St. Petersburg, Florida 33712

Martha Harrell Chumbler, Esquire Carlton, Fields, Ward, Emmanuel,

Smith & Cutler, P.A. Post Office Drawer 190

Tallahassee, Florida 32302

Marjorie M. Student, Esquire Collier County Attorney's Office Administration Building, 8th Floor 3301 East Tamiami Trail

Naples, Florida 34112-4902

Steven M. Seibert, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Cari L. Roth, General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case. See Section 163.3184(9)(b), Florida Statutes.

Docket for Case No: 00-000540GM

Orders for Case No: 00-000540GM