STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DORIS SCHEMBER, )
)
Petitioner, )
)
and )
)
CITY OF ANNA MARIA, CITY OF ) BRADENTON BEACH, MANATEE COUNTY, ) and CITY OF HOLMES BEACH, )
)
Intervenors, )
)
vs. ) Case No. 00-2066GM
) DEPARTMENT OF COMMUNITY AFFAIRS ) and CITY OF BRADENTON, )
)
Respondents. )
__________________________________)
RECOMMENDED ORDER
On March 20 through 23 and 26 through 30, 2001, a formal administrative hearing was held in this case in Bradenton, Florida, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner and Island Cities:
Daniel J. Lobeck, Esquire
Law Offices of Lobeck & Hanson, P.A. 2033 Main Street, Suite 403
Sarasota, Florida 34237
For Department of Community Affairs:
Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For City of Bradenton:
Gary P. Sams, Esquire Douglas S.Roberts, Esquire Leigh H. Kellett, Esquire Hopping, Green, Sams & Smith Post Office Box 6526 Tallahassee, Florida 32314
For Manatee County:
James A. Minix, Esquire Manatee County
Post Office Box 1000 Bradenton, Florida 34306-1000
STATEMENT OF THE ISSUE
The issue in this case is whether Amendment 00-1ER to the City of Bradenton's comprehensive plan is "in compliance."
PRELIMINARY STATEMENT
Petitioner, Doris Schember, was one of eight people who petitioned against the Notice of Intent issued by the Department of Community Affairs (DCA) to find Amendment 00-1ER to be "in compliance." The Cities of Anna Maria, Bradenton Beach, and Holmes Beach (the Island Cities) intervened; so did Manatee County. On August 17, 2000, a Recommended Order of Dismissal for lack of standing was entered on the ground that none of the Petitioners submitted comments, recommendations, or objections between transmittal and adoption; but on
October 24, 2000, DCA entered an Order of Remand holding that Schember had made the requisite comments, recommendations, or objections (even if on to suggest better ways to give notice of the transmittal and adoption hearings besides the legally required notice). DCA also noted that no ruling had been made on the sufficiency of the Intervenors' allegations of standing.
In November 2000, counsel for Petitioner and the Island Cities moved to withdraw, and Bradenton opposed unconditional withdrawal. Motions to compel discovery also were filed, and Bradenton sought a ruling on its Motion to Strike and Alternative Motion for More Definite Statement, which was filed before the Recommended Order of Dismissal was entered. Final hearing was scheduled for January 9-12, 2001. Counsel for Petitioner and the Island Cities was given conditional leave to withdraw, and some discovery was compelled.
In December 2000, more discovery was compelled, and additional discovery was initiated and conducted. Bradenton's Motion to Strike and Alternative Motion for More Definite Statement was granted only to the extent that a more definite statement of paragraph 18.C. of the Amended Third Petition for Formal Administrative Proceeding (Amended Third Petition) was ordered. Counsel for Petitioner and the Island Cities withdrew. Petitioner and the Island Cities moved pro se and
unopposed for a continuance; and final hearing was continued until February 13-16, 2001.
In January 2001, new counsel appeared on behalf of Petitioner and the Island Cities. Extensive discovery proceeded, and Bradenton filed two more motions to compel discovery and a motion to strike portions of the Amended Third Petition for failure to provide discovery. On January 29, 2001, Manatee County moved for mediation and for a continuance.
On February 2, 2001, a hearing was held on the pending motions. Upon the agreement of all parties, the County's motion was granted, and final hearing was continued until March 20-23, 2001, to allow time for mediation. In addition, an Order Compelling Discovery was entered granting one of Bradenton's motions to compel in part. (Bradenton's other motion to compel was withdrawn.)
On February 27, 2001, Petitioner moved to amend the Amended Third Petition. Bradenton and DCA opposed the motion; Manatee County and the Island Cities supported it. The motion was heard on March 5, 2001, and leave to amend was granted to file the Fourth Amended Petition for Formal Administrative Hearing (the Fourth Amended Petition).
A Joint Prehearing Stipulation was filed on March 14, 2001. Among other things, it marked and identified the
parties' hearing exhibits and indicated that 6-9 days would be required for final hearing.
On March 16, 2001, Petitioner and the Island Cities filed a Motion to Compel and for Sanctions and a Motion in Limine and for Sanctions. These motions were heard at the outset of final hearing on March 20, 2001. The Motion in Limine and for Sanctions was denied. The Motion to Compel and for Sanctions was denied in part as moot, and ruling initially was reserved as to the remainder. Later in final hearing, the remainder of the motion also was denied.
After opening statements at final hearing, Petitioner and the Island Cities called the following witnesses: Robert Young, who was qualified as an expert in coastal storm processes, coastal marine geology, coastal hazards, coastal hazard mapping, coastal wetlands, coastal zone management, coastal hydrology and near-shore physical oceanography; Clark Hull, who was qualified as an expert in wetlands and Southwest Florida Water Management District (“SWFWMD”) regulations; Peter M. Dailey, who was qualified as an expert in planning and comprehensive planning; Doris Schember; Gail Cole, Mayor of Bradenton Beach; Carolyn Whitmore, Mayor of Holmes Beach; Anne Beck, former Director of Public Works and Disaster Coordinator for Anna Maria; Randall Toth, who was qualified as an expert in traffic and transportation planning; Wayne
Poston, Bradenton's Mayor; Jerry West, Bradenton's Planning Director; Ruth Seewer, Bradenton's Senior Planner; and Pierre Abadjian, Bradenton's Chief of Planning and Zoning.
Petitioner and the Island Cities also examined the County's witnesses as part of their case-in-chief. Petitioner and the Island Cities also had the following P/I Exhibits admitted in evidence: 1-7; 9; 11; 12(a-b); 13-17; 19-21; 28; 36; 39; 41-
44(a-b); 48; 50; 63; 65; 66(a-c); 67(g); and A through H.
In its case-in-chief, Manatee County adopted the testimony and exhibits introduced by Petitioner and the Island Cities and called the following witnesses: Joe McClash, Chairman, County Board of County Commissioners; Michael Wood, Comprehensive Planning Administrator for the County, who was qualified as an expert in planning; Laura Feagans, Emergency Management Chief for the County; and Douglas Means, Environmental Manager for the County, who was qualified as an environmental expert. The County also had the following County Exhibits admitted in evidence: 5(a-c); 9; 11(a-c); 22; 27; 30; and 31(a-b).
DCA called one witness, Daniel Lucas, who was qualified as expert to testify on land use planning, comprehensive planning and DCA process and procedure. DCA also had DCA Exhibits 1, 7-9, 11-13, and 15(a) admitted in evidence. (P/I
not only cross-examined but also questioned the DCA witness as part of their own cases-in-chief.)
Bradenton called the following witnesses: James Hudgens, environmental consultant, who was qualified as an expert in natural resources, water quality and environmental resource permitting and mitigation; Harold A. Frediani, who was qualified as an expert in surface water hydrology, civil engineering and coastal engineering and design; George Deakin, who was qualified as an expert in traffic engineering and planning, including hurricane evacuation; Thomas McCollum, who was qualified as an expert in land use planning and permitting; John Cumming, Director of Public Works for the City of Bradenton, who was qualified as an expert in public works and public works planning; Ruth Seewer, Senior Planner for the City of Bradenton; Thomas Pelham, who was qualified as an expert in land use planning, comprehensive planning and growth management; and William Brisson, who was qualified as an expert in comprehensive planning. Bradenton also had the following City Exhibits admitted in evidence: 1(a-g); 2(a); 8; 9; 11; 12; 21-23; 28; 35-37; 40; 43; 46; 48; 49; 51-54(a-
b); 55(a-b); 61; 62; 64-66; 69; 73; 94; 97(d); 114; and A
admitted in evidence.
After presentation of evidence, Petitioner and the Island Cities ordered a Transcript, and the parties were given ten
days from the filing of the Transcript in which to file proposed recommended orders (PROs). The Transcript was filed on May 9, 2001. The next day, DCA filed an agreed Request for Extension of Time to File Proposed Recommended Order until
May 24, 2001, and the extension was granted. The parties timely filed proposed recommended orders, which have been considered.
FINDINGS OF FACT
The City of Bradenton (Bradenton) is in Manatee County. It is situated essentially along the south bank of the Manatee River. Its westernmost extent is Perico Island, some of which is in Bradenton and some of which is in unincorporated Manatee County. Perico Island is separated from the mainland by Perico Bayou, but State Road (SR) 64 (a/k/a Manatee Avenue West) bridges Perico Bayou and connects Perico Island to the rest of Bradenton. To the north of Perico Island is the mouth of the Manatee River and Tampa Bay; to the west is Anna Maria Sound, which separates Perico Island from Anna Maria Island, a barrier island along the Gulf of Mexico. From north to south, the Cities of Anna Maria, Holmes Beach, and Bradenton Beach (the Island Cities) occupy Anna Maria Island. SR 64 extends west from Perico Island and bridges Anna Maria Sound; its western terminus is in the City of Holmes Beach. To the south of Perico Island is Palma Sola
Bay and Cortez Peninsula. SR 684 (a/k/a Cortez Road) extends west from the peninsula and bridges Sarasota Pass south of Anna Maria Sound; its western terminus is in the City of Bradenton Beach.
Bradenton adopted a comprehensive plan in 1989, and the plan was found to be "in compliance." In 1995-1997, Bradenton conducted and evaluation and appraisal of the plan and issued an Evaluation and Appraisal Report (EAR). Bradenton then began the process of adopting EAR-based amendments to its comprehensive plan.
Prior to June 10, 1998, most of South Perico Island-- i.e., Perico Island south of SR 64--was part of Bradenton. (Only the southeast corner of South Perico was in unincorporated Manatee County.) On the other hand, all of North Perico was in the unincorporated Manatee County.
Effective June 10, 1998, Bradenton annexed 416 acres of North Perico by voluntary annexation, leaving only the southeast corner of North Perico and a small parcel in the southwest corner of North Perico in the unincorporated County.
Bradenton's EAR-based amendments also addressed comprehensive planning for the 416 acres of North Perico annexed into the City effective June 10, 1998.
Adoption Process
Over the 22-month-long process of developing its EAR- based amendments, Bradenton published notice of opportunities for the public to comment on the City Plan at 15 monthly Planning Commission meetings and held a special workshop on several elements of the Plan on April 28, 1999.
The Bradenton City Council (“City Council”) held the first required public hearing on Amendment 00-1ER on
October 27, 1999. The October 17, 1999, published notice for this hearing was in the form of a notice for a public hearing on a change of land use, contained the title of the proposed ordinance adopting the Amendment, and included a map of the City. At the conclusion of the public hearing, the City Council passed a resolution authorizing transmittal of the proposed Amendment to DCA.
During the transmittal meeting, counsel for the City advised that the adoption of a comprehensive plan amendment was a legislative enactment, and the next public hearing on the Comprehensive Plan would occur after DCA reviewed the Amendments, probably in February 2000.
The City sent its transmittal package to DCA in early November 1999. DCA sent copies of the proposed Amendment to all of the reviewing agencies listed in Section 163.3184(4), Florida Statutes, and Florida Administrative Code Rule 9J-
11.009, including the County. However, the County did not submit any objections, recommendation or comments to the City between transmittal and adoption of Amendment 00-1ER.
After DCA completed its review of the proposed amendments, the agency issued an Objections, Recommendations, and Comments (ORC) Report on January 20, 2000, containing written comments from the following: Florida Department of Environmental Protection, Florida Department of State, the Southwest Florida Water Management District, and the Tampa Bay Regional Planning Council. Manatee County (“County”) submitted no written comments for inclusion in the ORC report.
The City Council held the second required public hearing on February 23, 2000, when it adopted as Ordinance 2619 the proposed amendments with changes responding to the concerns raised in the ORC Report. The newspaper notice for the second public hearing, published on February 11, 2000, was in the form of a notice for a public hearing to change land use, and contained the title of the proposed ordinance adopting the Amendment and a map of the City. The City transmitted the adopted Amendment to DCA on March 6, 2000.
On March 24, 2000, the City wrote DCA to correct two errors in the adopted Plan. The City submitted what it said was the proper Future Land Use Map (“FLUM”), which had been inadvertently omitted from the transmitted package; the City
also said it was correcting a scrivener’s error referencing a 8-foot contour line in Coastal Policy 5.5.1, instead of the 2- foot contour line (the latter of which was consistent with other provisions of the City’s Plan and comments and explanations by City Planning Staff at the adoption hearing).
DCA issued a Notice of Intent to find Amendment 00- 1ER in compliance on April 18, 2000.
Standing
Petitioner resides and owns property in Bradenton.
She addressed the City Council at the February 23, 2000, adoption hearing. In her comments, she complained that she did not know about the transmittal hearing on October 27, 1999, and only learned of the adoption hearing the morning of February 23, 2000. She suggested better ways to give notice of the transmittal and adoption hearings besides the legally required notice. Unaware of the proposed plan amendment, Schember had not read or reviewed it at the time of her comments and did not provide any additional oral or written comments, recommendations, or objections before or during the adoption hearing.
Bradenton is located within Manatee County. It is undisputed that the County adjoins Bradenton.
The Island Cities also are municipalities with the County. They are located on Anna Maria Island, a barrier
island on the Gulf of Mexico separated from the mainland by open waters Anna Maria Sound and Sarasota Pass. No part of Bradenton is on Anna Maria Island; as such, the land of the Island Cities does not touch or abut the land of Bradenton.
As previously stated, SR 64 crosses the Anna Maria Sound over the Anna Maria Bridge between Anna Maria Island and Perico Island. The western terminus of Anna Maria Bridge is within the City of Holmes Beach.
The City of Anna Maria (Anna Maria) is to the north of Holmes Beach, at the extreme north end of Anna Maria Island. Tampa Bay lies to the north of Anna Maria; Anna Maria Sound is to the east and separates Anna Maria from Perico Island by Anna Maria Sound.
Bradenton Beach is to the south of Holmes Beach.
Near where Bradenton Beach adjoins Holmes Beach, Bradenton Beach is separated from Perico Island by Anna Maria Sound; farther south, it is separated from the Cortez Peninsula, which is part of the County, by a narrower body of water called Sarasota Pass. West Cortez Road (SR 684) bridges Sarasota Pass over the Cortez Bridge; the western terminus of the bridge is within the Bradenton Beach, but the eastern terminus is in the County. Unlike Holmes Beach, no road or bridge directly connects Anna Maria and Bradenton Beach to
Bradenton; transportation routes from those cities to Bradenton all go through Holmes Beach.
The Intergovernmental Coordination Element (ICE) of Anna Maria's comprehensive plan identifies Holmes Beach and Bradenton Beach as "adjacent municipalities" but omits Bradenton. Similarly, Anna Maria's plan names Holmes Beach as its southern boundary but names either Tampa Bay, Anna Maria Sound, or Palma Sola Bay as its eastern boundary. In a section called "Residential Growth Trends," Anna Maria's plan states that it "connected to the mainland by two bridges; namely, the Manatee Avenue and Cortez Bridges."
Based on the evidence, Bradenton Beach also identifies Holmes Beach but not Bradenton as an adjoining local government. (The excerpt from Bradenton's Beach plan placed in evidence does not include the ICE.) Similarly, Bradenton Beach's plan names Holmes Beach as its northern boundary but names Sarasota Bay and Anna Maria Sound as its eastern boundary. In a section called "Residential Growth Trends," Bradenton Beach's plan states that it "is adjoined by the Manatee County unincorporated on the mainland."
The ICE of the Holmes Beach comprehensive plan emphasizes coordination with Anna Maria and Bradenton Beach as adjoining local governments. However, ICE Policy 1.1.13 of the Holmes Beach plan also specifically mentions Bradenton
(along with the County) in terms of hurricane evacuation coordination; and Future Land Use Element (FLUE) Policies
3.1.4 and 3.1.5 specifically address potential impact of development along SR 64 in the vicinity of Perico Island, the latter requiring Holmes Beach to request the opportunity for input on such development decisions.
The County and Island Cities alleged that Bradenton's Plan Amendment will produce substantial impacts on the increased need for publicly funded infrastructure. But whether such impacts will result from Bradenton's Plan Amendment depends primarily on the allegation that Bradenton's plan for the annexed 416 acres on North Perico allows substantially more residential development than the County's plan. As found infra, Petitioner and Intervenors (P/I) did not prove this premise beyond fair debate. See Finding of Fact 50, infra. In addition, not all of any new need for publicly funded infrastructure will be funded by the County and Island Cities; some will be funded by the State.
The County also asserted a substantial impact, regardless whether the City's plan for North Perico allows substantially more residential development, because the County will lose impact fees from development on North Perico. But the loss of impact fees was the result of annexation, not Amendment 00-1ER. Besides, as a result of annexation, some
services for North Perico will be provided by the City instead of the County. It was not proven that the "net" impact from services that will continue to be provided by the County without impact fees will be substantial.
The County also alleged that Bradenton's Plan Amendment will produce substantial impacts on areas designated for protection or special treatment within the jurisdiction of the County. (It was not suggested by the evidence that any such areas have been designated by the Island Cities.) The County cited its participation in the Sarasota National Estuary Program and Tampa Bay Natural Estuary Program, as well as its FLUE Policy 2.9.4.4 on natural waterfront vistas.
Substantial impact on the water quality of waterways part of the Sarasota National Estuary Program and Tampa Bay Natural Estuary Program was not proven by the evidence. To the extent that the County relied on alleged allowance of substantially more residential development on North Perico under the City's plan, the allegation was not proven beyond fair debate. See Finding of Fact 50, infra.
As for FLUE Policy 2.9.4.4, it was not proven that Amendment 00-1ER itself will have a substantial impact on the County's natural waterfront vistas. While Bradenton's plan does not contain a natural waterfront vista protection policy per se, the City Plan does contain measures to protect the
environment and the shoreline of the waterfronts. Meanwhile, as found infra, the County's protection measures are neither mandatory nor definite. It cannot be determined during comprehensive plan review how either jurisdiction's plan provisions will be implemented during the development process.
Maximum Prospective Residential on North Perico
Not just Intervenors' standing but also most of the instances of noncompliance alleged by P/I in this case depend on the allegation that the City's Plan Amendment allows greater residential development on North Perico than the County's plan did. These include allegations of: urban sprawl; incompatibility, inconsistency, and conflict with the County, regional, and state plans; lack of coordination with the County's plan (via incompatibility, inconsistency, and conflict with it); alleged increased storm vulnerability; increased traffic; increased hurricane evacuation clearance times; reduced availability of hurricane shelters; increased need for public infrastructure; and the necessity for additional data and analysis on the foregoing aspects of Bradenton's plan.
Bradenton's Plan Amendment designates 243 of the annexed 416 acres of North Perico as RES-3, with density limited to 3 units per acre. The RES-3 land use designation
was created especially for coastal areas like North Perico.
It is the lowest density assigned to any land within the City.
Bradenton's Plan Amendment designates the remaining
173 acres of the annexed 416 acres of North Perico as Conservation. P/I argue that the Conservation designation could allow golf courses, athletic fields, and other similar recreational facilities. It is true that Bradenton's FLUE Policy 1.1.1 designates a land use category called "Recreational/Conservation" with the following range of uses: "Parks, designated open areas and conservation." But the amended FLUM differentiates between Recreational/Open Space and Conservation, and the FLUM series includes a separate Future Recreation Map (which does not include the Conservation land on North Perico.) These FLUM designations evidence an intent to distinguish between active recreational uses and conservation. In any event, it is clear that residential land use is not authorized in the areas designated Conservation under Bradenton's plan. Bradenton's combined Coastal Management/Conservation Element (CM/CE) Policy 5.1.2 in Bradenton's Plan clearly prohibits "construction of building, roadways and parking areas in that zone except to provide shoreline access points as determined necessary or of overriding public interest by City Council." For purposes of calculating maximum prospective gross residential density,
Bradenton's plan should be interpreted as not allowing any residential land use in areas designated Conservation on its FLUM.
The County's Plan provided a RES-3 designation on the western and northern portions of the annexed 416 acres on North Perico, and a RES-6 designation on the southeastern portion. Policies 2.2.1.10.3 and 2.2.1.12.3 of the County Plan's FLUE provides for a "maximum gross residential density" in those categories of three and six dwelling units per acre, respectively. Considering just these provisions, it is clear that maximum prospective gross residential density on North Perico is significantly less under Bradenton's Plan Amendment than it was under the County's plan.
FLUM A of the County Plan depicts wetlands. The County Plan's Conservation Element Policy 3.3.1.1 prohibits "removal, alteration or encroachment within wetlands except in cases where no other practical alternatives exist." But, if no practical alternatives exist, the County Plan's FLUE Policy
2.3.1.1 provides for transfer of density "from wetlands and associated buffers to upland portions of the same project site." Such density transfers "shall be limited to wetland acreage less than or equal to 20% of total gross project acreage."
Adding consideration of the County's conditional prohibition against alteration of wetlands, along with the provision for density transfer, it remains clear that maximum prospective gross residential density on North Perico is significantly less under Bradenton's Plan Amendment than it was under the County's plan.
Bradenton's plan also has provisions addressing transfer of density out of wetlands to uplands. Policy 9.2 ("[i]nnovative development with mixed use where consistent with the [FLUM]") of the FLUE Goal states:
Discourage removal, alteration or encroachment of wetlands by permitting the transfer of density or intensity from wetlands and associated buffers to upland portions of the same project site. Such transfer . . . shall be limited to wetland acreage less than or equal to 20% of total gross project acreage.
CM/CE Policy 5.1.4 requires to City to "establish a lower priority for the funding of public infrastructure with[in] the CHHA [Coastal High Hazard Area] and includes the language:
For purpose of determining dwelling unit density in coastal areas, residential or non-residential developments may transfer density to upland portions of the same project site. Any such development transfer is subject to project approval through the site plan process, as determined necessary or of overriding public interest by the City Council.
It is not at all clear how or why these provisions should apply on North Perico to effect a transfer of nonexistent
density from the 173 acres designated Conservation on Bradenton's FLUM to the 243 acres designated RES-3. It seems clear on the face of these provisions that they (like the County's density transfer provisions) address projects located in areas that are designated for development but which contain some wetlands in those areas that would reduce development potential of the project site below the designated FLUM densities. It appears that Peter Dailey, expert for P/I, may have recognized this when he commented that use of Bradenton's transfer of density provisions on North Perico seemed to be awarding a density "bonus."
Notwithstanding the apparent inapplicability of Bradenton's transfer of density provisions to North Perico, the expert planners who testified at final hearing (including Dailey) presumed for purposes of comparing development potential on North Perico under the City and County plans that Bradenton's transfer of density provisions would apply and allow transfer of (presumably, RES-3) density from the 173 acres designated Conservation to development on the 243 acres designated RES-3, up to a maximum of 20% of the total acreage of the site.
To attempt a more precise comparison of the maximum prospective gross residential density on North Perico under the FLUMs in the two plans, the City called Harold Frediani,
an engineer, who testified that it is possible to use a planimeter--a device used to measure the area of a polygon on a map--together with the FLUM map scales to approximate the acreage within the areas designated RES-3 and RES-6 on the County's FLUM for North Perico. Using these accepted engineering methods, Frediani calculated 321 acres of RES-3 and 95 acres of RES-6 under the County FLUM. He then assumed that the 173 acres designated Conservation on the City's FLUM constituted the wetlands on the annexed 416 acres and determined that density from only 83 acres of those wetlands (20% of the total 416 acre site) could be transferred to uplands under either plan. Using these assumptions and calculations, Frediani calculated the maximum prospective gross residential density on the annexed 416 acres on North Perico to be 2.35 units per acre under the City plan and 2.89 units per acre under the County Plan. In terms of residential units, Frediani calculated 979 units under the City Plan and 1202 under the County's plan. (Planning witness for P/I, Peter Dailey, calculated 981 units under the City plan--a "close fit.")
It was not explicit but could be inferred from
Frediani's testimony that Frediani somehow apportioned the assumed 173 of wetlands between RES-3 and RES-6 on the County FLUM. Otherwise, it would not have been possible to
accurately calculate maximum prospective gross residential density on North Perico under the County's FLUM. (In addition, assigning all of the assumed wetlands to either
RES-3 or to RES-6 would not yield the result Frediani obtained under the County plan.)
Frediani's assumption that the 173 acres designated Conservation on the City's FLUM constituted the wetlands on the annexed 416 acres was incorrect and in fact understated the extent of wetlands on North Perico. See Finding of Fact 139, infra. It is not clear from the evidence how much more wetlands are actually on North Perico; nor is it clear exactly how much difference using the actual wetland acreage would have made in the comparison Frediani was attempting. But it probably would not have greatly affected the comparison.
Other Provisions Affecting Density on North Perico
P/I assert that other parts of the County's plan reduce gross residential density on North Perico under the County's plan. But two of the County plan provisions cited as reducing gross residential density were not in effect on the date of annexation of North Perico (on June 10, 1998). New policies on coastal evacuation areas (CEA), along with a CEA map overlay, and FLUE natural waterfront vistas Policy 2.9.4.4 were adopted by County ordinances enacted on April 2, 1998, but not legally effective until June 11, 1998, the day after
annexation. See Conclusion of Law 185, infra. (Bradenton and DCA argued that coastal storm vulnerability area (CSVA) policies and overlay map also were created by the ordinances, but the evidence was that ordinances simply renamed as CSVA pre-existing coastal high hazard area policies and overlay map which applied to the geographic area of the County seaward of the 5-foot contour line.) The testimony of all land use planning witnesses called by P/I assumed the applicability of FLUE natural waterfront vistas Policy 2.9.4.4 and the CEA policies and overlay map on before annexation. There was no evidence as to how much the other County plan provisions, excluding FLUE natural waterfront vistas Policy 2.9.4.4 and the CEA policies and overlay map, would reduce the gross residential density that actually would be allowed on North Perico under the County's plan.
Even including consideration of FLUE natural
waterfront vistas Policy 2.9.4.4 and the CEA policies and overlay map with the other County plan provisions, it cannot be ascertained at this time how much County plan provisions would reduce the gross residential density that actually would be allowed on North Perico under the County's plan.
FLUMs E and F of the County Plan apply the CSVA Overlay and CEA Overlay, respectively, to North Perico. As previously mentioned, County FLUE Policy 2.2.2.5.1 defines the
CSVA as "the geographic area which lies seaward of the 5 foot topographic contour line, including all areas of known coastal flooding." Under County FLUE Policy 2.2.2.4.1, the CEA is the "geographic area which lies within the evacuation areas for a Category 1 hurricane." FLUE Objective 2.2.2 of the County Plan provides that the Overlay Districts "establish targeted geographic areas, within which the application of highly specialized policies can be implemented." Policy 2.2.2.1 under that Objective provides that the Overlay Districts are set forth as "comprising the second part of the future land use classification system "
Table 2-1 of the County Plan FLUE, captioned "Summary of Future Land Use Classification System," lists the various Overlay Districts and describes the "Function" of each. The functions of the CSVA and CEA are stated as follows:
Coastal Storm Vulnerability Area: Limit Public Expenditures And Subsidized Development Within These Coastal Areas, And Direct Population Concentration Away from Known or Predicted Coastal Storm Vulnerability Areas.
Coastal Evacuation Area: Direct Population Concentrations Away From The Coastal Evacuation Area.
Policies for the CSVA and CEA are provided in almost identical form in Policies 2.2.2.5.2 and 2.2.2.4.2 of the County Plan's FLUE. The only difference between the two policies is in the
first paragraph; the others are identical. For ease of reproduction, the following quotation consists of the first paragraphs of each policy and a combination of the subsequent identical paragraphs:
To limit population in the areas most vulnerable to coastal storm events. (CSVA).
To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. (CEA).
To limit the amount of infrastructure, both private and public, within the CSVA/CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents.
To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CSVA/CEA, and reduce the risk of exposing
lives or property to storm damage.
To accomplish shoreline stabilization along coastal areas by limiting development activity which may adversely impact shoreline stability.
To protect coastal water quality by reducing impervious surface along coastal areas, thereby reducing the risk of incomplete treatment of stormwater runoff before discharge into coastal waters.
To encourage, establish and maintain vegetative and spatial bumper zones, in order to maintain the capacity of natural vegetative communities in
mitigating the negative affects of storm surge and tidal velocity, and the erosive effect of wave action.
Policy 2.9.4.4 of the County Plan's FLUE states: "Protect natural waterfront vistas as a defining characteristic of Manatee County. Protection measures may include but are not limited to . . . increased waterfront setbacks and buffers, . . . maintaining conservation areas in public or joint ownership arrangements, . . . and limitations on height and size of structures." Taken together with FLUE Policy 2.6.2.7, requiring clustering as appropriate to limit impacts on adjacent conservation, open space or environmentally sensitive uses, the natural waterfront vistas policy might have the effect of reducing density. But the protection measures in FLUE Policy 2.9.4.4 are optional, not mandatory; besides being optional, they do not specify height or any other limitations.
All the land use planning experts agreed that it cannot be ascertained at this time how much application of any of these other policies would reduce the gross residential density that actually would be allowed on North Perico under the County's plan. That would depend on implementation of the policies through LDRs and the development project permitting process. This fact is reflected in several County Plan provisions. County Plan FLUE Policy 2.2.1.6 provides that
"nothing in this Comprehensive Plan shall guarantee the achievement of maximum development potential, as shown on the Future Land Use Map." FLUE Policy 2.2.1.6 is to:
Require that a specific project’s maximum potential be established only through the application of the implementing land development regulations, including zoning districts, which may restrict development potential to less than the maximum provided for in this Comprehensive Plan . . ..
(Emphasis added.)
Similarly, County Plan FLUE Policies 2.2.2.4.4(a) (CEA) and 2.2.2.5.4(a) (CSVA) (combining the CEA and CSVA provisions for ease of reproduction in this quotation) provide:
Effective Mapping: Any project which is at least partially within the CEA/CSVA Overlay District shall be submitted for approval under the special approval process . . ..
The area designated under the [CEA/CSVA] Overlay District on the Future Land Use Map shall also be subject to all goals, objectives and policies for any future land use category overlaid by the [CEA/CSVA] district, except where policies associated with the CEA/CSVA Overlay conflict with such goals, objectives and policies. In this event, policies associated with the [CEA/CSVA] Overlay shall override other goals, objectives and policies.
Likewise, FLUE Objective 2.1.1 requires the County to "follow a mapping methodology . . . which recognizes existing development . . . and a possible development density and intensity less than the maximum specified on the Future Land Use Map." (Emphasis added.)
In reviewing maximum prospective gross residential density in a plan, DCA must consider whether overlay districts and other plan provisions reduce the density (and intensity, where applicable) specified by FLUM designations by an objectively ascertainable amount. For that reason, it is appropriate to consider the effect of the provisions in both plans prohibiting residential development of wetlands and limiting density transfer to uplands. But when specific reductions cannot be ascertained at the plan review stage, DCA must assume the maximum objectively ascertainable prospective density. Otherwise, DCA would have to speculate as to density. Bradenton's and DCA's land use planning experts appropriately declined to enter into such speculation.
On the other hand, planning witnesses for P/I were willing to speculate as to how much the County's other plan provisions might drive down density. Peter Dailey testified: "[E]xperience tells me that at a minimum you are looking at probably a 25 to 30 percent reduction in density based on the imposition of those overlay districts." He then testified that it could go "50 or 60 percent" and that one-third would not surprise him. County Comprehensive Plan Administrator Michael Wood, testified: "I don't know that you can meet the intents of all those policies without having some reduction below the maximum . . . in my mind I think that it has to be
at least a third below what the Future Land Use Map is showing as the Res-3." Manatee County Commission Chairman Joe McClash, testified that density on North Perico is constrained to less than "if you just purely look at the future land use map." He then testified "in a general sense," based on "general guidelines" he believed would be used by the Board of County Commissioners in development project permit review, he "would imagine that anywhere from the one to the maximum of two units to the acre would be the appropriate density in the Perico area." He also characterized this as a reduction of one-third to one-half of the three units per acre from the FLUM designation. (It is not clear whether Commissioner McClash was referring to the RES-6 southeastern portion of North Perico as well as the RES-3 portion.) But as previously indicated (and as indicated by the general and differing estimates of ultimate residential density on North Perico given by these witnesses) the precise reduction from the County's FLUM density cannot be determined at this time. It would not be appropriate for DCA to assign such imprecise densities for purposes of comprehensive plan amendment review of maximum prospective gross residential density.
Besides the uncertainty of how density would be
limited under the County's plan and LDRs, there are provisions in the City plan that could lower residential density on North
Perico below the 3 units per acre designated on the City's FLUM. While the City plan does not use overlay districts per se, Amendment 00-1ER adopted Neighborhood Recommendations 12.04A, which identify and address development issues specific to North Perico. Among other things, they include recommendations to "strictly enforce the flood protection ordinance for development of the island" and that "[h]urricane evacuation and traffic impacts on State Road 64 shall be considered as an important issue in review of applications for development approval." Under the City's plan, Neighborhood Recommendations have the effect of policies by virtue of Policy 1.2 of the FLUE Goal in the City’s Plan, which states:
The recommendations for each neighborhood contained in this plan are hereby adopted as part of this plan and are to be adhered to in all land use decisions.
In addition, CM/CE Policy 5.5.1 designates "undeveloped coastal acreage with[in] areas below the 8-foot contour line as PDP (planned development project) and limit residential development to low density" there. Although the PDP process is not spelled out in Bradenton's plan, several witnesses characterized it as the functional equivalent of the County’s Special Approval.
In general, Bradenton and the County have taken different approaches to assigning residential densities in their plans. In the County's Plan, the objectively
ascertainable maximum gross residential density, as least for North Perico, is higher than the City's; on the other hand, it is clearer in the County plan than in the City's that the ultimately achievable density after consideration of other plan policies (and implementing LDRs) during the development permitting process may well be somewhat less than the maximum. Nonetheless, it is still possible for consideration of other City plan policies (and implementing City LDRs) during the development permitting process to reduce the ultimately achievable gross residential density below that objectively ascertainable maximum in the City plan.
The preceding discussion focuses on gross residential density. From their presentations at final hearing, Petitioner and Intervenor also appeared to be attempting to make an issue as to net density, but their proposed recommended orders did not mention net density. Perhaps they recognized that the County plan allowed transfer of density from wetlands to uplands (assuming the City's plan also does) and that, under County FLUE Policies 2.2.1.10.3 and
2.2.1.12.3 and Coastal Policy 4.3.1.5, RES-3 and RES-6 net density limits "may be waived for appropriate clustered projects."
Based on these findings on maximum prospective residential density and development potential on North Perico
under the City and County plans, it cannot be found that the City's Plan Amendment allows any more residential density or development on North Perico--gross or net--than the County's plan did. At the comprehensive plan review stage, the question remains at least subject to fair debate. As previously indicated, these findings on maximum prospective residential density and development potential are dispositive of several other issues raised by P/I.
Intergovernmental Coordination
P/I allege that the City's Plan is not consistent with the requirement for intergovernmental coordination. But the City's Plan contains several strong and specific requirements to carry out the intergovernmental coordination requirements of state law.
ICE Objective 1.3 requires that the City: "Maintain coordination between Bradenton and Manatee County." ICE Policy 1.3.1 requires the City to: "Continue coordination of City and County Comprehensive Plans through mutual review and criticism as a means of ensuring consistency." Policy 1.3.3 requires that the City: "Carefully coordinate land use and development policies along city/county fringe areas and in hurricane evacuation zones to ensure compatibility." Discussion in the ICE of the need for intergovernmental coordination in the FLUE also states: "Land use plans
affecting the property on the periphery of the City and plan amendments to address annexed areas must be carefully coordinated with the County." ICE Policy 1.3.8 also states: "Amendments to the City's Comprehensive Plan to address annexed property shall be compatible with Manatee County's Comprehensive Plan in regard to density and intensity limits and level of service standards." Objective 7 of the City's FLUE Goal requires: "Consistency of the City's land use policies . . . to the extent possible with those of the County and adjacent communities." Policy 1 under Objective 7 requires the City to "review annually the current state, regional, county and local plans and amend this plan as necessary for consistency."
There is nothing inconsistent between any part of the Plan Amendment and the requirements for intergovernmental coordination in the City's Plan. The requirements for intergovernmental coordination are not weakened, diluted, or in any way changed by Amendment 00-1ER.
Analyzed closely, what P/I have argued is that the City failed to follow its extraordinarily strong procedural and substantive intergovernmental coordination policies in adopting Amendment 00-1ER.
Procedurally, as already noted, Bradenton sent the County a copy of its proposed Plan Amendment for review and
comment at the time of transmittal to DCA. In addition, County Planning Staff had knowledge of the City’s ongoing amendment process. The City and County engaged in formal and informal intergovernmental coordination. As recognized in the City Plan, the City and County have daily interaction concerning areas of mutual concern including public safety, planning, and provision of public infrastructure. One mechanism for intergovernmental coordination is a process of regularly exchanging meeting agendas for their respective planning commissions and County Commission and City Council meetings. Notwithstanding the process in place for intergovernmental coordination, and notwithstanding concerns about development on North Perico expressed at the time of annexation, the County made no comments on the City's proposed Plan Amendment at any time during the transmittal and adoption.
Another indication of the City's coordination with
the County in developing its Plan Amendment is that much of the data and analysis utilized by the City in preparing Amendment 00-1ER came from the County, including the County's EAR. Among other things, this data and analysis included a biological hotspots map and list of endangered and threatened species and habitat, the County’s analysis of hurricane
evacuation shelters, and information on roads and traffic for levels of service.
Substantively, P/I seem to take the position that the City's Plan Amendment is incompatible and inconsistent with the County's Plan because its provisions are not identical with the County's Plan provisions. But it is clear that compatibility and consistency do not require identical provisions.
Even if not insisting on identical plan provisions, P/I sometimes seem to insist that the City's plan must utilize overlay districts to the same extent as in the County's Plan, at least for North Perico, in order to be compatible and consistent with the County's plan. First, as already mentioned, the City's Plan Amendment had Neighborhood Recommendations that functioned like the County's overlay districts. Second, the County's use of overlay districts was a more appropriate planning tool for the larger geographic area covered by the County's Plan than it would be for a smaller jurisdiction like Bradenton. For those reasons, Bradenton's Plan Amendment is not incompatible or inconsistent with the County's Plan just because it did not use overlay districts in the same manner.
The requirement for land use compatibility at the comprehensive planning stage generally means that the
allowable types of land uses of adjacent parcels of land should be compatible. Any residential use adjacent to another residential use meets that requirement. Issues related to building types, building height, and clustering of density and intensity of development are properly addressed and resolved at the development approval stage with reference to applicable land development regulations.
With respect to maximum prospective gross residential density, the City reviewed the County’s FLUM when creating a land use designation for North Perico on the City FLUM. On its face, the City's FLUM designation is consistent and compatible with the County's FLUM for North Perico. In fact, as previously found, taking all objective measures into account, it is at least fairly debatable that the City actually "down-planned" North Perico. Meanwhile, the existing developments on Perico Island have gross densities of 4 to 11 units per acre. Amendment 00-1ER's residential density is neither inconsistent with the County's planning for North Perico nor incompatible with existing development.
The City’s planning for South Perico pre-dates Amendment 00-1ER. It includes Neighborhood Recommendations 12.04B, which are very similar to Neighborhood Recommendations 12.04A for North Perico in Amendment 00-1ER under review. The geography, environment, and proposed land uses for North and
South Perico also are very similar. DCA's previous finding that the City Plan for South Perico is compatible with the County Plan for North Perico is strong evidence that Amendment 00-1ER also is compatible with the County Plan for North Perico (as well as the rest of the County's Plan.)
P/I also argue that Amendment 00-1ER is inconsistent and incompatible with the County's FLUE Policy 2.9.4.4 calling for protection of natural waterfront vistas. As found, while Bradenton's plan does not contain a natural waterfront vista protection policy per se, the City Plan does contain measures to protect the environment and the shoreline of the waterfronts. Meanwhile, the County's protection measures are neither mandatory nor definite. It cannot be determined during comprehensive plan review how either jurisdiction's plan provisions will be implemented during the development process. As a result, it cannot be found beyond fair debate that the City Plan is inconsistent or incompatible with the County's FLUE Policy 2.9.4.4.
P/I also alleged that Amendment 00-1ER created a conflict with the County's plan by amending Public Facilities Element (PFE) Objective 3.1 to increase the City's potable water LOS standard to 125 gallons per person per day (up from 100). But this change merely reflected actual capacity, as reflected by current data and analysis. It did not relate to
water conservation measures and was not in any way inconsistent or incompatible with the County's plan.
Internal Consistency
Not only was internal inconsistency in relation to intergovernmental coordination not proven beyond fair debate, no other internal inconsistency in Bradenton's plan was proven beyond fair debate to have been occasioned by Amendment 00- 1ER.
P/I alleged that internal inconsistency arose in Bradenton's plan as a result of the amendment of CM/CE Policy
5.1.1. In response to statutory requirements and the request of DCA, the City in Amendment 00-1ER revised the definition of the the coastal high hazard area (CHHA) in CM/CE Policy 5.1.1 to include all of the lands within the evacuation zone for a Category 1 hurricane (Evacuation Zone A). Before Amendment
00-1ER, CM/CE Policy 5.1.1 defined the CHHA as land below the 2-foot elevation contour line. This change in the definition greatly enlarged the CHHA. All of Perico Island as well as much of the City on the mainland was brought into the newly- defined CHHA, including the City Hall, a hospital, and multiple commercial and residential areas within the City limits.
The City omitted to also amend CM/CE Policy 5.5.2, which continue to read: "Locate all public facilities outside
of the coastal high hazard area." But it is clear that the City did not intend to require all public facilities to be located outside the newly-defined CHHA. Amendment 00-1ER also amended CM/CE Policy 5.1.4 to establish a lower priority, not a prohibition, against funding of public infrastructure with[in] the CHHA as compared to non-CHHA areas; in certain listed exceptions, funding was not required to be lower priority in the CHHA. Clearly, Bradenton inadvertently omitted to amend CM/CE Policy 5.5.2 in light of the change in the definition of CHHA in CM/CE Policy 5.1.1 to apply only to the part of the newly-defined CHHA below the 2-foot contour line. But the City's clear intent can be gleaned by reference to the related goals, objectives, and policies.
As previously found, CM/CE Policy 5.5.1 contained a scrivener's error. See Finding of Fact 12, supra. P/I also alleged that internal inconsistency was the result. But the City corrected the error while DCA was still reviewing Amendment 00-1ER for compliance. Besides, CM/CE Policy 5.5.1 was not changed or in any way affected by Amendment 00-1ER. See Conclusion of Law 164, infra. Finally, it is clear by reference to related goals, objectives, and policies that the City did not intend to limit non-residential development below the 8-foot contour to water-dependent uses.
Hazard Mitigation
Amendment 00-1ER supplemented the City Plan’s hazard mitigation policies with the addition of post disaster redevelopment policies and with changes to the CHHA policies to make them consistent with state law.
As already found, Amendment 00-1ER changed the definition of the CHHA in CM/CE Policy 5.1.1 to include all of the lands within the Evacuation Zone A for a Category 1 hurricane, not just lands below the 2-foot contour line. This change resulted in all of Perico Island (as well as much of the land on the mainland in the City) being included in the CHHA.
CM/CE Objective 5.1 of the City Plan is to "[s]everely limit development in low-lying coastal areas." The City Plan contains several policies implementing that objective which include establishing a conservation zone to include all lands below the 2-foot contour line, prohibiting
filling below the 2-foot contour line, and limiting funding of infrastructure in the CHHA. (Policies 2, 3, and 4 of CM/CE Objective 5.1)
CM/CE Objective 5.5 of the City Plan is to "[k]eep population and investment low in areas vulnerable to coastal flooding." Several pre-Amendment policies implement this objective. CM/CE Policy 5.5.1 limited residential development
to low density below the 8-foot contour and limited, as previously found, limited non-residential development below the 2-foot contour to water dependent uses. As previously found, CM/CE Policy 5.5.2 states: "Locate all public facilities outside of the coastal high hazard area." (As also previously found, the clear intent was to locate public facilities outside the portion of the CHHA below the 2-foot contour.)
In addition to the FLUM designations for North Perico and the policies relating to the CHHA, Amendment 00-1ER also added the policies contained in Neighborhood Recommendations 12.04A, which require that the flood protection ordinance be strictly enforced, and that hurricane evacuation be considered as an important issue in review of applications for development approval on North Perico.
The City incorporates Federal Emergency Management Agency (FEMA) flood protection regulations by reference in the City Plan (ICE Policy 1.6.1) FEMA regulations require coastal development to be constructed to withstand flooding associated with hurricanes, and include regulations specifying minimum floor elevations, and other protective measures to minimize the potential for storm damage.
Amendment 00-1ER adds objectives and policies related to the management of storm water, and includes textual
updates related to the City’s stormwater system. CM/CE Policy
2.2.1 was amended to require that stormwater from new developments meet the level of service (LOS) standards of SWFWMD and the City’s NPDES stormwater permit.
In general, the City meets the LOS for stormwater.
In addition, all projects must be designed so that discharges will meet state water quality standards. (Public Facilities Element (PFE) Policy 4.1.1)
Preexisting CM/CE Policy 5.6.1 policy required strict enforcement of a flood ordinance based on FEMA regulations in the event of post-disaster redevelopment. In response to the ORC Report, the City provided for development of a post disaster redevelopment plan by 2000.
CM/CE Objective 5.7 requires the City to adopt a Local Mitigation Strategy (LMS) and coordinate its implementation with the County. The City participated in the development of a county-wide LMS and adopted it by Resolution as the City's LMS in 1999. The LMS has been accepted by DCA.
Bradenton's preexisting CM/CE Policy 6.1.1 recognized that the City plays a subordinate role to the County in planning and response to hurricanes and other disasters. City and County staff and the elected officials from the Island Cities characterize the local municipalities within the County as supporting the planning and response
efforts of the County. Bradenton also provides staff to support the County during hurricanes.
Bradenton's preexisting CM/CE Policy 6.1.4 required adoption of development regulations requiring new developments in high priority hurricane evacuation areas to submit hurricane evacuation plans to the County Emergency Management Division by December 1, 1989. Amendment 00-1ER required adoption by 2000.
Historically, few hurricanes and tropical storms have impacted the Bradenton area. No hurricanes have approached Bradenton from the north since records have been maintained. While history is no guarantee, hurricane predictor models also indicate that the likelihood of a major storm hitting Manatee County is relatively small. (The Tampa Bay Regional Planning Council Hurricane Evacuation Study does not even include a model for a storm with a northerly approach in its hurricane study.) In addition, while there is a substantial fetch of open water over Tampa Bay to the north of Perico Island, it is more likely that a storm would approach Manatee County from the west, east, or south than from the north. Perico Island is buffered by land masses from all those directions.
Based on data from the FEMA Flood Insurance Study and the TBRPC Storm Tide Atlas, a Category 1 hurricane would
have a recurrence interval of about 1 in 6 years and a maximum storm surge of about 4 feet above sea level at the tip of North Perico; a Category 2 hurricane would have a recurrence interval of about 1 in 40 years and a maximum surge of about
7.4 feet; a Category 3 hurricane would have a recurrence interval of about 1 in 300 years and a maximum surge of about
10.3 feet; and a Category 4 hurricane would have a recurrence interval of about 1 in 1000 years and a maximum surge of 13.2 feet.
Assuming it remains in place, the existing approximately 5-foot berm around the western and northern uplands of North Perico should keep out a Category 1 hurricane. Roads can be elevated to levels above the Category
1 storm surge and buildings can be elevated sufficiently to meet FEMA requirements for the protection of persons and property. If such measures are taken, flooding of residential structures would be fairly unlikely.
Hurricane shelter capacity in Manatee County, although under study and possibly subject to additional hardening requirements, appears to be satisfactory for a Category 2 (1 in 40 years recurrence) hurricane, with increasing deficits of shelter space for lower probability, greater severity hurricanes.
SR 64 is the evacuation route for the northern half of Anna Maria Island, Perico Island, and a portion of the mainland. So far, Anna Maria Island residents and the Island Cities have opposed proposals to widen of the Anna Maria Island Bridge. It is not clear whether widening the bridge would facilitate their evacuation or increase their safety since approaches to the bridge would remain two-lane under the proposals so far.
Evacuations are typically ordered 24 to 36 hours before the onset of hurricane force winds. Based on predicted evacuation times, a mandatory in-county evacuation can be completed prior to the onset of hurricane force winds. The addition residential units on North Perico probably would not result in insignificant increases in in-county evacuation times.
Hurricane evacuation times predicted from Manatee County to an out-of region point at I-75 in Wildwood or I-4 East of Orlando, in the event both the Tampa Bay area and southwest Florida are evacuated, are considerably higher; but such times are beyond the ability of any local government to cure. In-county alternatives are therefore recommended by the agencies.
Availability of Public Facilities
The Public Facilities Element (PFE), Recreation and Open Space Element (ROSE) and Transportation Element (TE) of the City Plan contain policies and procedures which implement concurrency requirements for public facilities and services. The LOS standards for potable water, wastewater, solid waste, and drainage are identified in the Goals, Objectives, and Policies of the PFE; the LOS standards for roadways and mass transit in the goals objectives and policies of the TE; and the LOS standards for parks and recreation space are identified in the Recreation and Open Space Element. (PFE Policies 2.1.2, 2.3.1, 4.1.1, 5.1.1; TE Traffic Circ. Policy 3.2; TE Public Trans. Policy 1.2; ROSE Policy 1.3.1)
The City's TE Traf. Circ. Objection 1.3 is "non- degradation of the LOS of the roadway system." Policy 1.3.3 defines degradation to mean reduction below the designated LOS for the road or, if the road already is functioning below the LOS standard, "a significant increase in traffic volume."
City and DCA witnesses interpreted "significant increase" to mean in excess of "an impact that would not affect more than 1 percent of the maximum volume at the adopted level of service of the affected transportation facility."
The City’s LOS standards for roadway capacity are the same as the LOS on state highways. The LOS standard for potable water is being met. It was adjusted upward as a design standard to reflect system capacity.
Development cannot occur unless utilities and roadway capacities are available at the identified levels of service. (FLUE Policies 1.2.1 and 1.2.2)
The City's PFE contains a description of the Concurrency Management System and Concurrency Determination Procedures.
The City Plan's TE contains a Roadway Capacity Analysis that identifies the operating LOS on each segment of the major roads within the City. The Roadway Capacity Analysis is based on determining the percentage of roadway capacity used at peak hour. Peak hour traffic volumes were estimated as 10% of the average daily traffic volume determined by traffic counts completed by the County and FDOT. The LOS assigned to the percentage volume was derived from the FDOT Generalized Two Way Peak hour volumes for Florida’s urbanized areas.
The City Plan’s Roadway Capacity Analysis Table does not accurately reflect the operating and projected LOS for two segments of SR 64 (15th Street West to 26th Street and 26th Street West to 59th Street) because the analysis did not take
into account the change in capacity occurring at 43rd Street. However, the text on page 200:17 of the Plan corrects this discrepancy by breaking the second segment into two sub- segments which more accurately reflect the capacity of the roadway. Likewise, a scrivener’s error on page 200:12 listing SR 64 75th Street West to the City limits as a LOS E should list the segment as LOS D. Consequently, that roadway segment properly does not (and should not) appear on the list of projected deficiencies contained on page 200:17. The correct LOS for that segment is shown on the Manatee County Concurrency Link sheets. A third discrepancy alleged by Petitioner’s traffic expert, Randall Toth, resulted from a misreading of the Table.
Because the City Plan’s Roadway Capacity Analysis is generalized, the City’s Concurrency Determination Procedure also allows applicants for development approval to submit detailed traffic studies to demonstrate that roadway capacity is available.
A detailed traffic study of SR 64 in the vicinity of Perico Island shows that the road is operating at LOS D, which is the acceptable LOS for roadways in Bradenton. The study also shows that sufficient available capacity exists so that additional trips from development of 898 new residential units
on Perico Island would not downgrade the operating LOS of SR
64 below LOS D.
For new development, the City determines concurrency at the time of development approval based on the standards defined in the Comprehensive Plan. Because concurrency determinations are based on projected impacts of a specific development, a concurrency determination cannot be made in the abstract, or based solely on the FLU designation on the City’s FLUM.
Amendment 00-1ER includes an updated Capital Improvements Element (CIE). The CIE is based upon the City’s ongoing 5-year improvement plan which contains all of the City’s major planned expenditures for capital improvements to meet LOS standards for the City, including maintenance, expansion, and upgrading of City roads, utilities and parks.
Policy 2.3 under the City Plan's FLUE Goal directs that the land use development regulations shall allow the City to require developers as a condition of development approval to provide utilities and roadways needed to serve the proposed development.
CIE Policy 1.1.1 provides for the City to "continue to use extraction as a means of insuring that developers contribute their proportionate share of the cost of roads, parks, water and sewer facilities required to meet adopted LOS
standards." CIE Policy 1.1.2 provides that the City may consider impact fees if the "City determines that the developers are not paying their pro rata share of costs to maintain level of service standards." (Both of these policies were in Bradenton's plan before Amendment 00-1ER and were unchanged by the amendment.)
The City’s CIE does not contain any planned expansion of potable water or public utilities on Perico Island because the City and County have entered into an Interlocal Agreement Regarding Water and Sewer Service. If any other utility improvements are needed to serve new development, the developer would bear the cost of the improvements.
Protection of Natural Resources
It is undisputed that North Perico is environmentally sensitive. Aerial photographs of North Perico show extensive vegetation in the uncleared areas. There are extensive areas of wetland and mangrove on North Perico, including the areas designated Conservation on the City's FLUM. Mangrove habitat "pretty much envelopes the island." Extensive sea grasses grow "all the way around" the island.
North Perico and the waters surrounding serve as prime habitat for numerous species of wildlife identified as endangered, threatened and species of special concern by state
and federal wildlife agencies. These include the common snook, Atlantic loggerhead turtle, Atlantic green turtle, gopher tortoise, gopher frog, little blue heron, snowy white egret, tri-colored heron, wood stork, brown pelican, American oystercatcher, limpkin, reddish egret, Louisiana heron and West India manatee, as well as the little green heron. North Perico also has listed species of plants, including the giant leather fern, scrub palmetto, dwarf palmetto, blue stem, wild pine and spring ladies tresses. Bradenton's Plan includes a map obtained from the County's EAR called Manatee County Florida Hot Spots of Biological Resources, which is consistent with the presence of species on North Perico.
The City's expert, James Hudgens, testified: "Wetlands provide essential breeding, nesting, resting and feeding grounds for many species of fish and wildlife, and provide habitat for a wide range of vegetative communities." Wetlands also operate to retain and detain storm waters and thereby reduce the potential for flooding. They also function to filter pollutants from upland activities. Wetlands, including specifically mangrove wetlands, provide important coastal buffer and coastal storm protection. Coastal vegetation other than wetlands is also important to protect because it stabilizes the shoreline, provides a windbreak and
can dissipate wave energy, playing a very important role in mitigating storm damage.
The City's Plan Amendment provides, in CM/CE Policy 4.2.2:
By 2000 adopt regulations that require approvals for development of uplands adjacent to wetland areas to stipulate that the developer take such measures necessary to ensure that uplands construction has no negative effect upon adjacent wetlands; or incorporate wetlands buffers meeting the requirements of the Southwest Florida Water Management District (SWFWMD); or meet the SWFWMD mitigation standards; and include a provision prohibiting unacceptable cumulative impacts within the drainage basin.
Prior to Amendment 00-1ER, the SWFWMD options were not part of the policy.
There were differences of opinion as to how the City's CM/CE Policy 4.2.2 should be interpreted. Witnesses for P/I thought the policy would allow developers to choose which of the three wetland protection measures--no negative impact, SWFWMD buffers, or SWFWMD mitigation--to apply to their projects. Bradenton countered that the evidence supports an interpretation allowing the City to choose the alternative affording the most wetland protection possible. The City's interpretation is reasonable and would be consistent with the CM/CE goal and objective which the policy implements.
SWFWMD is the agency to which State has given the responsibility to establish a permitting program to protect wetlands in Manatee County from adverse impacts. SWFWMD regulations regarding wetland buffers are designed to protect water quality, protect wetlands from physical intrusion, and protect habitat. SWFWMD requires a wetland buffer of a minimum of fifteen feet in width and an average of 25 feet in width.
P/I contend that wetlands had better protection under the County plan. The County's Conservation Element Policy 3.3.1.5 requires that wetlands be protected from land development activities by requiring natural area buffers adjacent to all post-development wetlands, of a minimum 30- foot width adjacent to isolated wetlands generally and 50 feet adjacent to "all in flowing water courses located in . . . all Outstanding Florida Waters and Aquatic Preserves." It also provides that these buffer widths "may be increased for large areas of significant wetlands" and for other purposes.
County Natural Resources Administrator Douglas Means testified that this 50-foot-plus buffer would apply to all of the wetlands on North Perico with the exception of any "isolated systems," that is it would apply to "the broad swath of wetlands . . . at the northern tip sweeping down through the center and along the coast" of North Perico. He also
opined that, in permitting, the policy probably would be applied to require a buffer greater than 50 feet on North Perico, "certainly along the northern and western areas," perhaps up to 100 feet.
Appropriate buffer width is ordinarily addressed in the permitting process. There is no single ideal buffer width. SWFWMD's average 25-foot buffer is generally considered adequate. In some cases, very narrow buffers can be as effective or more effective than wider buffers; in other cases the opposite is true. Generally, wider buffers can provide "more treatment area" for stormwater nutrient runoff. A greater buffer also would allow less encroachment into the wetlands by human activity. For that reason, the width of a wetland buffer can affect the integrity of wildlife habitat, and a 25-foot buffer may be more appropriate that SWFWMD's 15- foot minimum width for North Perico.
One of the witnesses for P/I, Dr. Robert Young, opined that the minimum appropriate wetland buffer width for North Perico was 100 feet. His testimony was based in part on the premise that one purpose of wetland buffers is to allow room for landward migration of a coastal wetland. But the evidence was that landward migration of wetlands on North Perico will be impeded by a pre-existing berm separating the uplands from the wetlands. Considering the slope of the berm,
it would take approximately 600 years for the wetlands to migrate over the berm. City expert Hudgens, who has wetland permitting experience along the Atlantic and Gulf Coasts from New York to Texas, knew of no jurisdiction in which landward migration of wetlands is a criterion for determining adequate buffer width.
On their face, SWFWMD's buffer standards are less generous than the County's. In practice, however, the County has allowed variable width buffers in which buffers as narrow as 25 feet were allowed adjacent to certain coastal wetlands as long as the difference was made up in other buffers elsewhere. As with many of the non-objective policies that may affect residential density on North Perico, the buffers ultimately required for North Perico under either the City or County plans are not certain at this time. It was not proven beyond fair debate that the City's plan provisions regarding wetland buffers will be inadequate, or that the City's plan provisions signal a clear retreat from buffer protections required under the County's plan.
P/I also seek to contrast the County's Conservation Policy 3.3.1.1 with the City's CM/CE Policy 5.1.2, which establishes the conservation zone applicable to the mangrove and wetlands of North Perico, prohibits the "construction of building, roadways and parking areas" below the two-foot
contour line, and prohibits the removal of "wetland vegetation except for limited access points." They contend that the City's policy allows clearing unvegetated portions of wetlands for active recreation or other uses, where the County's does not. But there was no evidence of any unvegetated wetlands on North Perico. It also was not clear from the evidence that City's plan would allow active recreation (such as golf course and ball fields) in unvegetated wetlands, if there were any.
Finally, it also is not clear that the County's Conservation Policy 3.3.1.1 is an outright prohibition against such use of unvegetated wetlands, if any; the County's policy allows wetland impacts "where no other practical alternatives exist or where there is an overriding public benefit." Meanwhile, County Policy 3.3.1.6 also allows dredge and fill of wetlands "when the activities are consistent with Objective 4.1.5 (relating to spoil sites). County Policy 4.1.2.2 also allows alteration of coastal wetland habitat for water-dependent uses, in cases of overriding public interest, and "when necessary to avoid the taking of private property." On the whole, protections afforded by the City's policy are comparable to the County's. In addition, the City's CM/CE Policy 5.1.2 was not changed by Amendment 00-1ER under review.
There is a berm surrounding upland on North Perico.
It was not clear from the evidence whether the berm is part of
a coastal ridge. The berm and interior are disturbed uplands, having been used for agriculture. Undesirable exotics such as Brazilian pepper and Australian pine are prevalent. There also are sea grapes, cabbage palms and young (small) live oak growing, especially in the vicinity of the berm. Other non- wetland vegetation on North Perico includes some slash pine, wax myrtle, silver leaf, prickly pear cactus, and xeric hammock. According to Hudgens, these non-wetland species are found "all along the berm and in those isolated areas where there is upland and not either held onto or colonized by wetland."
The County's Plan protects non-wetland coastal vegetation as well as wetland vegetation. The City's Plan Amendment specifically protects wetland vegetation but not non-wetland vegetation per se. But the City plan does afford protection to various wildlife habitat, which would include protection of non-wetland vegetation. For that reason, the significance of the differences in the two plans as to protection of non-wetland vegetation was not clear from the evidence.
School Siting
The City's FLUE Policies 1.4.1, and 1.4.2 provide that public schools are an appropriate land use within the residential, professional, and commercial land use categories,
and that public schools shall be allowable as special exceptions in other land use categories. FLUE Policy 1.4.3 outlines concerns to be considered when school sites are proposed. In addition, the City's FLUM clearly depicts existing schools and their proximity to public facilities, such as recreation areas.
School siting is reviewed on a case-by-case basis.
When local governments are between ninety and 95% completely built out, as Bradenton is, there may be little or no land to site future schools. If so, the local government must demonstrate this fact, and present it to the Department to comply with the Act’s school siting requirements. Other factors also are taken into account in deciding whether a local government has met school siting requirements "to the extent possible."
P/I contend that the "special exception" option in the City's FLUE Policy 1.4.2 somehow violates school siting requirements. To the contrary, this provision actually enhances the collocation of schools in that schools are allowable as special exceptions only if they are compatible with existing or anticipated nearby uses.
Urban Sprawl
Petitioner and Intervenor attempted to argue that the City's FLU designations for the annexed 416 acres on North
Perico constituted urban sprawl. But none of the indicators of urban sprawl were present in this case.
The western extreme of Bradenton is not developed as much or as densely as much of the rest of Bradenton, and densely developed barrier islands are just across the Anna Maria Bridge to the west of Perico Island. Looked at from that scale and perspective, it would not be illogical to view development on Perico Island as in the nature of "infill."
In addition, both the City's preexisting FLUM designations for South Perico and the County's former FLUM designations on North Perico included low density residential. Since the County's low density residential designations have been found to not to encourage urban sprawl, it would be illogical for DCA to now find that the City's similar designation encourages urban sprawl.
Finally, from the time of its 1989 comprehensive plan, and in order to discourage urban sprawl, the County established a "Developing Urban Core" in the western part of the County for future urbanization, in contrast to its reservation of a "Future Development Area" in the eastern part of the County. Perico Island has always been in the County's "Developing Urban Core."
Consistency with State and Regional Plans
The applicable adopted state comprehensive plan is found in Section 187.201, Florida Statutes. The applicable regional policy plan is the Tampa Bay Regional Planning Council's Strategic Policy Plan.
P/I alleged numerous violations of the state and regional policy plans. But there was no persuasive evidence, that Bradenton's Amendment 00-1ER was either in conflict with, or failed to take action in the direction of realizing goals or policies in, either the state or regional policy plan, construed as a whole.
Data and Analysis
The evidence was that voluminous data and analysis supported Amendment 00-1ER. Some of this data and analysis was provided to DCA during review of both the proposed and adopted amendment. This initial data and analysis included Bradenton's EAR, which DCA found to be sufficient, and data and analysis obtained from the County. Some of the data and analysis obtained from the County had been used to support the County's FLUM designations for North Perico.
P/I tried to make much of a statement included in Bradenton's letter dated March 6, 2000, transmitting Amendment 00-1ER to DCA. The letter stated in part: "No new data and
analysis were necessary to support these amendments." P/I tried to characterize the statement as a damaging admission of failure to support Amendment 00-1ER with data and analysis, but all Bradenton intended by the statement was that data and analysis already provided was adequate.
The City and DCA also relied on external agency reviews of the Plan Amendment, and the agencies’ expertise in certain areas. The City relied on certain SWFWMD permitting programs, while DCA relied on external agency reviews of the Plan Amendment. The Department of State, the Florida Department of Transportation ("DOT"), SWFWMD, the Tampa Bay Regional Planning Council ("TBRPC"), and the Florida Department of Environmental Protection ("Department of Environmental Protection (DEP)") all reviewed Amendment 00- 1ER, and none had any objections.
When P/I challenged the adequacy of Bradenton's data and analysis in this proceeding, Bradenton produced voluminous additional data and analysis supporting the amendment. Additional analysis was provided through final hearing.
Evidence presented by P/I did not challenge very much of this voluminous data and analysis as being either not the best available or not professionally acceptable. Indeed, none of the witnesses called by P/I had reviewed all of the
data and analysis relied on by Bradenton to support Amendment 00-1ER.
Bradenton based its population estimates on estimates developed by the Shimberg Center for Affordable Housing at the University of Florida. Shimberg estimates were developed under contract to DCA as part of DCA's development of affordable housing information for use in local comprehensive plans. The population estimates by the Shimberg Center were based upon the mid-range of the population estimates prepared by the Bureau of Economic and Business Research at the University of Florida (BEBR). While challenged by P/I, the evidence was that this population data was the best available and was professionally prepared.
The evidence at final hearing disclosed some errors in data and analysis that were included as part of Amendment 00-1ER. Most of these errors were in the nature of typographical or arithmetical errors or omissions. Analysis provided during final hearing cured these defects. To the extent that some errors might be characterized as data, data errors were not significant, and the correct data supported Amendment 00-1ER.
As found, it was not proven that Bradenton's FLUM designations and land use planning for North Perico allowed greater residential density than the County's plan allowed.
For that reason, Bradenton's reliance on the data and analysis obtained from the County to support its land use designations and residential density for North Perico (as well as may other aspects of Amendment 00-1ER) cannot be faulted.
Alleged FLUM Error
Towards the end of their case-in-chief at final hearing on March 26, 2001, P/I called Bradenton's senior planner, Ruth Seewer, who was principal drafter of Bradenton's FLUE amendments. Among other things, Seewer testified that the split between 243 acres of "Vacant" land and 173 acres of "Recreational/Open Space" in Current Land Use Data and Current Land Use Map for Neighborhood 12.04A (the annexed 416 acres on North Perico), as well as the RES-3 and Conservation land designations depicted on Bradenton's FLUM amendment for the annexed 416 acres on North Perico, were based on a certified survey.
After Seewer's testimony, counsel for Petitioner and the Island Cities sought production of a copy of the certified survey; in response to the production request, the City produced a copy of a letter dated October 23, 1998, from Thomas McCollum, a land use planner in a land use, engineering and surveying consulting firm working for the owner of the annexed part of North Perico. Attached to the letter was a "drawing" "for use in the amended comprehensive plan." The
drawing was not a certified survey and bore a legend stating that it depicted mangrove area in cross-hatch, a "contour," a total of 416 acres, 173 acres of conservation/wetland, and 243 acres of upland. The 173 acres of conservation/wetland corresponded to the 173 acres of Conservation depicted on the FLUM amendment, and the 243 acres of upland corresponded to the 243 acres of RES-3 on the FLUM amendment.
Late in the afternoon on March 29, 2001, the second-to-last day of final hearing, Bradenton called Seewer during its case-in-chief to explain the City's production of the letter and uncertified drawing, which was introduced as P/I Ex. F (and also to give testimony on data and analysis inaccuracies in the FLUE amendment.) Seewer explained that her testimony two days earlier was unintentionally incorrect and that the FLUM amendment for North Perico actually was not
based on a certified survey but rather on the drawing attached to McCollum's letter. Under examination by counsel for Petitioner and the Island Cities, Seewer explained that her recollection and understanding at the time of her earlier testimony was influenced by the circumstances of her dealings with McCollum. She testified that she had asked McCollum for a survey of the mangroves on the annexed 416 acres on North Perico for purposes of designating conservation and residential land uses on the FLUM amendment. She viewed
McCollum's consulting firm as consisting of engineers and surveyors, and she assumed that McCollum would respond to her request with a certified survey (or least a document based on a certified survey). Seewer defended her assumption on her disbelief that an engineering firm would "lie" in response to her request.
It does not appear that Seewer noticed that the drawing McCollum sent her was not a certified survey. In any event, she never asked that it be replaced by an actual certified survey. Seewer also did not base the FLUM amendment land use designations for North Perico on any information other than McCollum's drawing.
Other documents available by the time of adoption of Amendment 00-1ER on February 23, 2000, indicated that there are more than 173 acres of jurisdictional wetland on North Perico.
One such document is a certified Boundary Survey by McCollum's firm dated January 14, 1999, which is P/I Ex. G in evidence. The Boundary Survey depicts an area labeled Mangroves marked by a line which appears to coincide with what is labeled "CONSERVATION AREA/WETLAND LINE" on the aerial photograph dated June 15, 1999, and overlay introduced by Bradenton as City Ex. 9 and 9A. Bradenton witness Hudgens testified that the "CONSERVATION AREA/WETLAND LINE" on City
Ex. 9A was determined through inspection and agreement with SWFWMD, which certified its accuracy. (It is not clear from the evidence when these determinations were made and certified by SWFWMD, or when City Ex. 9A was prepared.) This same line appears as the "JURISDICTIONAL WETLAND LINE" on the map introduced by Bradenton as City Ex. 8. (It also is not clear from the evidence when City Ex. 8 was prepared.)
The copy of the County's FLUM A introduced in evidence also appears to depict wetlands on North Perico approximately coincident with the wetland lines on City Ex. 8,
9 and 9A and on the Boundary Survey certified on January 14, 1999. The County's FLUM A also was in existence on
February 23, 2000, when the City's Plan Amendment was adopted; however, it is not drawn to scale. In addition, since it covered the entire county, the copy introduced in evidence could not be precise because it was on letter-sized paper.
It is evident from review of these exhibits, along with the SWFWMD aerial photographs and elevation contours dated in 1984 and in evidence as P/I Ex. 65, that the 173 acres designated Conservation on Bradenton's FLUM amendment does not include all jurisdictional wetlands. Essentially, it excludes jurisdictional wetland interior to the berm constructed on the western and northern portions of North Perico.
CONCLUSIONS OF LAW
Section 163.3184(9)(a), Florida Statutes, permits an "affected person" to file a petition challenging DCA's notice of intent to find comprehensive plan amendments to be "in compliance." (All statutory citations are to the 2000 codification of the Florida Statutes. All rule citations are to the current Florida Administrative Code.)
Standing
Section 163.3184(1)(a) states: "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; 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.
Petitioner is a resident of Bradenton. ALJ Stevenson dismissed Petitioner for lack of standing because her comments at the adoption hearing on February 23, 2000, were insufficient under Section 163.3184(1)(a) to confer
standing to raise the issues brought in this case. But DCA remanded, holding that Petitioner's comments were sufficient. DCA's ruling is the law of the case.
Under Section 163.3184(1)(a), adjoining local governments have standing if Bradenton's Amendment 00-1ER "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." Based on the Findings of Fact, it is concluded that Manatee County and Holmes Beach are "adjoining local governments," but that Bradenton Beach and Anna Maria are not.
As found, whether Amendment 00-1ER "will produce substantial impacts on the increased need for publicly funded infrastructure" depends primarily on the allegation that Bradenton's plan for the annexed 416 acres on North Perico allows substantially more residential development than the County's plan. Moreover, it is concluded that the impact must be on the increased need for infrastructure funded by the local government seeking to standing (not, for example, the State or the United States). In any event, based on the findings that Bradenton's Amendment 00-1ER did not allow substantially more residential development for North Perico, the County and Island Cities did not prove that Amendment 00-
1ER "will produce substantial impacts on the increased need for publicly funded infrastructure."
The Island Cities did not assert "substantial impacts on areas designated for protection or special treatment within [their] jurisdiction." The County asserted substantial impacts on the water quality of waterways part of the Sarasota National Estuary Program and Tampa Bay Natural Estuary Program in which Manatee County participates and on its natural waterfront vistas due to incompatibility and inconsistency of Amendment 00-1ER with the County's FLUE Policy 2.9.4.4. But, as found, the County did not prove substantial impacts on those designated areas.
Burden and Standard of Proof of Noncompliance
Under Section 163.3184(1)(b), "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 this part and with the principles for guiding development in designated areas of critical state concern."
Section 163.3184(9) provides that, when DCA has given notice of intent to find comprehensive plan provisions to be "in compliance," those provisions "shall be determined
to be in compliance if the local government's determination of compliance is fairly debatable." Since DCA gave such notice as to the City's Amendment 00-1ER, P/I bore the burden of proving, beyond fair debate, that Amendment 00-1ER is not "in compliance." See Young v. Department of Community Affairs, 625 So. 2d 831, 833-35 (Fla. 1993).
The term "fairly debatable" is not defined in Chapter 163, Florida Statutes, or in Florida Administrative Code Rules Chapter 9J-5, the rules promulgated under those statutes. The Supreme Court of Florida has opined that the fairly debatable standard under Chapter 163 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, 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." See also B & H Travel Corp. v. Department of Community Affairs, 602 So. 2d 1362 (Fla. 1st DCA), app. dism. and rev. denied, 613 So. 2d 1 (Fla. 1992). Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court stated further: "[a]n 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.
Public Participation
In the Fourth Amended Petition, P/I made general allegations that the adoption of Amendment 00-1ER was procedurally defective, citing Rule 9J-5.004 and Section 163.3184 (15). At hearing, P/I seemed to refine their allegations by focusing on two alleged defects: a failure to comply with the public participation requirements for comprehensive plan amendments, and a failure to read the ordinance adopting Amendment 00-1ER twice prior to adoption by the City Council.
The first alleged defect is based on Rule 9J-5.004, which relates to the adoption of public participation procedures. P/I did not demonstrate that the City had failed to adopt public participation procedures, or that Amendment 00-1ER was adopted without adequate public participation. To the contrary, the City published notice of comment opportunities throughout the development of Amendment 00-1ER,
as well as notice of the City Council’s public hearings required for transmittal and adoption. The transcripts of the transmittal and adoption hearings show that both City Council members and citizens understood the nature of the proceedings and commented on proposed Amendment 00-1ER prior to its adoption.
Petitioners and Intervenors also argue that the ordinance adopting Amendment 00-1ER is invalid because it was not read aloud by title or in full prior to adoption in accordance with Section 166.041(3)(a). However, this argument ignores the special procedures for adoption of comprehensive plan amendments in Section 163.3184(15):
PUBLIC HEARINGS.--
The procedure for transmittal of a complete proposed comprehensive plan or plan amendment pursuant to subsection (3) and for the adoption of a comprehensive plan or plan amendment pursuant to subsection (7) shall be by affirmative vote of not less than a majority of the members of the governing body present at the hearing. The adoption of a comprehensive plan or plan amendment shall be by ordinance. For the purposes of transmitting or adopting a comprehensive plan amendment, the notice requirements in chapter 125 and 166 are superseded by this subsection, except as provided in this part.
The local governing body shall hold at least two advertised public hearings on the proposed comprehensive plan or plan amendment as follows:
The first public hearing shall be held at the transmittal stage pursuant to subsection (3). It shall be held on a weekday at least 7 days after the day that the first advertisement is published.
The second public hearing shall be held at the adoption stage pursuant to subsection (7). It shall be held on a weekday at least 5 days after the day that the second advertisement is published.
If the proposed comprehensive plan or plan amendment changes the actual list of permitted, conditional, or prohibited uses within a future land use category or changes the actual future land use map designation of a parcel or parcels of land, the required advertisements shall be in the format prescribed by s. 125.66(4)(b)2. for a county or by s. 166.041(3)(c)2.b. for a municipality.
The process described in Section 163.3184 (15) substitutes the transmittal hearing for one of the two hearings on the ordinance that would otherwise be required by Section 166.041(3)(a). In addition, by explicitly superseding the notice requirements of Chapter 166, this provision exempts plan amendment ordinances from the reading requirements of Section 166.041(3)(a). In any event, the procedures set forth in Section 163.3184 satisfy the intent behind the "two readings" requirement, which is "to give the public notice of the ordinance and to make the council itself aware of the ordinance’s effect[.]" City of St. Peterburg v. Austin, 355 So. 2d 488 (Fla. 2d DCA 1978).
The entire comprehensive plan adoption and amendment process is designed to require public participation and careful deliberation by elected officials. Considering the broad dissemination of proposals required to ensure public participation under Section 163.3181(2) and the two advertised public hearings required under Section 163.3184(15) and the review by the DCA between the transmittal and adoption stages, formal reading of a proposed plan amendment ordinance is not necessary to ensure that the public and the City Council are aware of what is being considered and have deliberated prior to adoption. C.f., Nash v. Vaughn, 133 Fla. 499, 509, 182 So. 827, 831 (Fla. 1938) ("The purpose of requiring the ordinance to be read at more than one session or meeting is to prevent undue haste and secure deliberation by the legislative body before its final passage.")
Recognizing the extensive public participation
provided for in the comprehensive planning context, the courts have not required strict compliance with formal plan adoption procedures. In B & H Travel Corp. v. DCA, 602 So. 2d 1362 (Fla. 1st DCA 1992) rev. denied, 613 So. 2d 1 (Fla. 1992), for example, the court upheld DCA’s determination that plan amendments were "consistent with" the requirements of Rule 9J-
5 and Chapter 163 when "considered as a whole," even though the local planning board did not formally recommend the
amendments before adoption by the governing body as required in Section 163.3174(4). Id. at 1366. The court reasoned that the intent of the statutory requirement was met because the planning board, in fact, played an "active role" in the plan adoption process, and the public had "unfettered and significant participation in the process." Id. Although the B&H court did not address the requirements of Section 166.041, its logic applies in this case, where significant public participation was solicited and occurred. See also Gong v.
Department of Community Affairs, DOAH Case No. 94-3506GM, 1994 WL 1027737 (Fla. Div. Admin. Hrgs.), ER FALR 94:166 (DCA
1994). ("Petitioners suffered no prejudice even if arguably, the statutory notice requirements were not met.")
Because Amendment 00-1ER was discussed at both the public hearings for transmittal and adoption of the Amendment, the title of the ordinance was included in the published notice for both hearings, and the public and City Council were well apprised of the intended effect of the Amendment, the adoption procedure used by the City is consistent with the requirements of Chapter 163 and Rule 9J-5.
The City’s submission of a letter correcting two scrivener’s errors did not prejudice the public’s ability to comment on the Amendment, or the City Council’s deliberations. See Harris v. Town of McIntosh, DOAH Case No. 92-6258GM, 1993
WL 943629 (Fla. Div. Admin. Hrgs.), 15 FALR 2977, 2984 (DCA
1993). The City’s letter disclosing the scrivener’s error and DCA’s subsequent consideration of the changes identified did not invalidate the adoption or transmittal of adopted Amendment 00-1ER for DCA review. Gong v. Department of Community Affairs, supra.
Consistency with State and Regional Plans
Section 163.3177(10) provides a local government's comprehensive plan is "consistent" with the state and regional policy plan if the local plan is "compatible with" and "furthers" such plans. It also defines the phrase "compatible with" as meaning "not in conflict" and defines the term "furthers" to mean "take action in the direction of realizing goals or policies of the state or regional plan." In addition, in making these determinations, the state and regional plans "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 plan. "
As compared to Chapter 9J-5, the state plan sets out general planning goals and policies. Unlike Chapter 9J-5, they do not establish "minimum criteria"; rather, if a plan would appear to violate a provision of the state plan, a balanced consideration must be given to all other provisions of both the state and local plan to determine whether a local
comprehensive plan is consistent with the state plan. In addition, many of the provisions of the state plan apply to the State of Florida and its agencies in planning on the state level, as opposed to local governments. Rarely will a local plan violate the state plan if it does not also violate the applicable Chapter 9J-5 "minimum criteria." See Heartland Environmental Council v. DCA, DOAH Case No. 94-2095GM, 1996 WL 1059751 (Fla.Div.Admin.Hrgs.)
Regional planning council policy plans are similar to the state comprehensive plan. They set out general planning goals and policies for the region. They do not establish "minimum criteria."
P/I allege numerous violations of the state and regional policy plans. But, as found, there was no persuasive evidence, using the proper standard of review, that Bradenton's Amendment 00-1ER was inconsistent with either the state or regional policy plan.
Jurisdiction to Review Policies Not Amended
The numerous instances of non-compliance alleged in the Fourth Amended Petition included many focusing on preexisting plan provisions not amended by Amendment 00-1ER. Such provisions already have been reviewed and found to be in compliance. DCA and Bradenton contend that DCA has no
jurisdiction to review them again. With one exception, the position taken by Bradenton and DCA has merit.
Under Rule 9J-5.003(6), "Amendment" means any action of a local government which has the effect of amending, adding to, deleting from or changing an adopted comprehensive plan element or map or map series . . .." If a plan amendment only amends a portion of a plan, preexisting plan provisions not amended by the plan amendment are not per se subject to DCA review or challenge under Section 163.3184(9)-(10).
An amended portion of a plan may be challenged for internal inconsistency with plan provisions not changed by the amendment. In addition, consideration of the preexisting plan provisions may be relevant in reviewing and challenging the adequacy of plan amendments in light of the rest of the plan. But in both cases, the question is the compliance of the amended portion of the plan, not the plan provisions not amended.
Several challenges attempted by P/I fail for lack of jurisdiction under these principles. Specifically, there is no jurisdiction to review CM/CE Policy 5.5.1, or CIE Policies 1.1.1 and 1.1.2 on the use of "extraction" as a means to ensure a developer pays a proportionate share of the infrastructure costs of development. Those policies were unchanged by Amendment 00-1ER, and nothing changed by
Amendment 00-1ER altered the consistency of these provisions with Chapter 163 and Rule 9J-5. On the other hand, there is jurisdiction to challenge CM/CE 5.5.2 for allegedly being internally inconsistent as result of changes to CM/CE 5.1.1. See Finding of Fact 66, supra.
One exception arises in the case of an EAR-based amendment under Section 163.3191(10). Under that statute, a plan amendment is required to update the comprehensive plan "based on the components of subsection (2)." Paragraph (2)(f) specifies updates related changes in Chapter 163 and Rule 9J-
For that reason, an EAR-based amendment could be reviewed found not in compliance for failure to include a provision required by an amendment to Chapter 163 or Rule 9J-5. Examples would be failure to meet the new school siting requirements in Section 163.3177(6)(a), or inconsistency with the new "de minimis" language in subsection (6) of Section 163.3180, governing concurrency.
School Siting
Regarding school siting, it is concluded that Bradenton's plan, as amended, meets the new requirements in Section 163.3177(6)(a):
The future land use element must clearly identify the land use categories in which public schools are an allowable use. . . .
The future land use element shall include criteria which encourage the location of schools proximate to urban residential
areas to the extent possible and shall require that the local government seek to collocate public facilities, such as parks, libraries, and community centers, with schools to the extent possible.
The FLUE Policy 1.4.1 clearly identifies the land use categories in which public schools are an allowable use. The "special exception" option in the City's FLUE Policy 1.4.2 does not make the land use categories in which public schools are an allowable use any less clear. Meanwhile, both FLUE Policy 1.4.2 and Policy 1.4.3 would tend to encourage location of schools in urban residential areas where schools would be compatible and collocation of schools with public facilities compatible with schools.
In addition, the City's FLUM depicts the location of public schools in and near urban residential areas and near recreational facilities.
Finally, the evidence was that Bradenton is almost completely built out. There is relatively little need or opportunity to site new schools in Bradenton. In contrast, the clear intent of the new school siting provisions was to address jurisdictions where the need and opportunities to site new schools is greater. In the case of Bradenton, it is reasonable to conclude that Bradenton's school siting provisions meet the requirements of the statute "to the extent possible."
De Minimis Roadway Impacts
P/I challenged the City's TE Traffic Circulation Objective 1.3 and Policy 1.3.3, which were not changed by Amendment 00-ER1, for alleged failure to define "non- degradation" of roadway system LOS in terms of new "de minimis" language in subsection (6) of Section 163.3180, governing concurrency.
Section 163.3180(6) creates a legislative finding that "de minimis" impacts are consistent with the statute's concurrency requirements. It then defines "de minimis" as "an impact that would not affect more than 1 percent of the maximum volume at the adopted level of service of the affected transportation facility." It does not require an EAR-based plan amendment to conform to its policies to use the statutory TE Objective 1.3 "de minimis" language.
As found, City's TE Objective 1.3 is "non- degradation of roadway system LOS, and Policy 1.3.3 defines degradation as "significant increase in traffic volume." By operation of law, so long as "significant increase in traffic volume" does not exceed the statutory "de minimis" definition, the roadway impacts allowed under the City's TE Objective 1.3 and Policy 1.3.3 will be deemed consistent with Section 163.3180, governing concurrency.
The evidence was that SR 64 is functioning at its LOS standard of D. It also was not proven beyond fair debate that Amendment 00-1ER will increase traffic, as compared to the County's planning for North Perico. Finally, the evidence was that impacts from development on North Perico under Amendment 00-1ER would not cause SR 64 to function below LOS
D. For these reasons, Amendment 00-1ER complies with Section 163.3180(6).
Intergovernmental Coordination
The requirements for intergovernmental coordination are found in Section 163.3177(4) and (6)(h), together with and Rule 9J-5.015. It was not proven beyond fair debate that Bradenton did not meet these requirements.
As found, Bradenton's plan has several strong policies for coordination with adjacent local governments, including the County, and for compatibility with their comprehensive plans. By requiring compatibility in comprehensive planning for annexed lands and requiring close coordination on hurricane evacuation and planning in city/county fringe areas where annexation, mutual incorporation and joint infrastructure are likely to be issues, the City’s ICE provides procedures for the identification and implementation of joint planning areas in compliance with the statutes and rule.
The City's ICE policy requiring that City plan amendments related to annexation be compatible with the County plan is, in and of itself, a procedure for the coordination of planning activities, in compliance with Section 163.3177(4)(a), and for resolving annexation issues under to Rule 9J-5.015(3)(c)4.
As found, there is nothing inconsistent between any part of Amendment 00-1ER and the requirements for intergovernmental coordination in the City's Plan. The requirements for intergovernmental coordination are not weakened, diluted, or in any way changed by Amendment 00-1ER. Analyzed closely, P/I actually argue that, notwithstanding extraordinarily strong procedural and substantive intergovernmental coordination policies, Amendment 00-1ER is inconsistent because those policies were not followed in the City's adoption of the amendment.
Bradenton met the requirements of Section 163.3184(4) by transmitting a copy of its proposed amendment to the reviewing agencies listed in Rule 9J-11.009(8), including the County. The City was not required by statute or by its own comprehensive plan to solicit comments from the County on Amendment 00-1ER after it provided the County a copy of the proposed amendment. As found, P/I did not prove that
Bradenton failed to follow its own procedural intergovernmental coordination policies.
P/I also alleged that Bradenton did not follow its substantive intergovernmental coordination policies in that Bradenton's land use planning for North Perico was inconsistent and incompatible with the County's prior planning for North Perico. This allegation also was not proven beyond fair debate.
Consistency/Compatibility/Coordination with County Planning
In asserting that Amendment 00-1ER is incompatible and inconsistent with the County's Plan, P/I went so far as to take the position that because its provisions are not identical with the County's Plan provisions. But there clearly is no requirement that comprehensive plans of adjacent local governments be identical in order to be compatible and consistent.
P/I also alleged that the City's failure to utilize overlay districts made its plan incompatible or inconsistent. First, as already noted, the CEA overlay district and provisions were not part of the County's plan prior to annexation. Second, there is no legal requirement that overlay districts be utilized in comprehensive planning. Rather, overlay districts are simply a planning tool available for use by the City. As an alternative, the City has chosen
to use neighborhood policies and to designate a coastal high hazard area to meet requirements of Section 163.3177(6)(g) and Rule 9J-5.012(3)(a)6 that the City limit population concentrations in coastal areas and areas subject to hurricane damage. Use of an alternative planning tool is not inconsistent or incompatible with the County's plan.
P/I also alleged that, because the City Plan does not require "special approval" of development on North Perico, the City Plan is inconsistent with the County Plan and therefore not in compliance. However, the evidence demonstrated that, by designating all lands under the 8-foot contour as requiring planned development project (PDP) approval, the City Plan is consistent with the County Plan in that proposed developments in coastal areas are specially scrutinized.
P/I also alleged that Bradenton's residential density for North Perico is inconsistent with (i.e. substantially greater than) residential density for North Perico under the County's plan.
When considering density for purposes of determining the amount of residential development allowed by a plan, it is appropriate to consider the maximum prospective residential density. Rule 9J-5.003(31) defines "Density" as an "objective measurement." Non-objective Plan criteria which
ultimately may affect density, depending on a particular proposed development and on the discretion of the local government, do not fall within the definition of density and are not an appropriate measures of density. When comparing maximum prospective residential density under different plans, the maximum density assigned on one jurisdiction’s FLUM (as adjusted by any plan provisions which serve as additional objective criteria affecting density) is compared with the maximum density assigned on the adjacent jurisdictional FLUM (as that maximum density is adjusted by objective Plan provisions of the other jurisdiction). See Martin County v.
City of Stuart, DOAH Case No. 97-4582GM, 1999 WL 1483614 (Fla. Div. Admin. Hrgs.), 22 FALR 3120 (DCA 2000). As found, using these standards, it was not proven beyond fair debate that Bradenton's plan for North Perico allowed more residential development than the County's.
Another reason P/I failed to prove that the City's planning liberalized residential density on North Perico was that Section 171.062(2) provides that "if the area annexed was subject to a county land use plan and county zoning and subdivision regulations, these regulations remain in full force and effect until the municipality adopts a comprehensive plan amendment that includes the annexed area." (Emphasis added.) As indicated in the Findings of Fact, the County plan
in effect at the time of annexation did not include the CEA overlay district and provisions or County FLUE 2.9.4.4 on natural waterfront vistas. As a result, none of the evidence introduced by P/I compared the City plan to the County plan in effect at the time of annexation.
There is no requirement in Chapter 163 or in Rule 9J-5 that comprehensive plans contain vista or view protection policies. Consequently, the lack of a natural waterfront vista policy does not render the City Plan not in compliance. Nonetheless, P/I alleged that, because Amendment 00-1ER and the City Plan as amended do not include such a policy, the City's Plan is inconsistent and incompatible with the County Plan.
First, as already discussed, the County's FLUE Policy 2.9.4.4 was not part of the County's plan at the time of annexation. Second, while Bradenton's plan does not contain a natural waterfront vista protection policy per se, the City Plan contains measures to protect the environment and the shoreline of the waterfronts. Third, as found, the County's protection measures are neither mandatory nor definite, and it cannot be determined at this time how the measures would be implemented during the development process.
The differences between the two plans regarding protection of natural waterfront vistas policy do not render
the Plans inconsistent or incompatible. Neither do the differences between the two plans regarding protection of natural resources. See Findings of Fact 61, 62, and 107-114, supra.
Compatibility With Nearby Land Uses
P/I also allege that the Amendment fails to contain a policy providing for the compatibility of adjacent land uses in violation of Rule 9J-5.006(3)(c )2. The Goal of the FLUE and Policy 1.2.4 of that element satisfy the requirements of Rule 9J-5.006(3)(c )2.
The test for the compatibility of adjacent land uses is whether the types of uses are compatible. Bradenton's conservation and low density residential land use designations for North Perico clearly pass the test of compatibility with nearby existing and future land uses.
FLUM density assigned to North Perico by the City also is clearly compatible with existing land uses. Existing developments on Perico Island have gross densities of 4 to 11 units per acre.
Since it was not proven beyond fair debate that the City's Plan Amendment allows any more residential density or development on North Perico--gross or net--than the County's plan did, it also could not be proven beyond fair debate that
the City's Plan Amendment is inconsistent or incompatible with surrounding land uses or with the County's plan.
Internal Consistency
Section 163.3177(2) and Rule 9J-5.005(5)(a) require that the elements of a comprehensive plan be internally consistent.
In contrast to determinations under Section 163.3177(10(a) as to whether a local comprehensive plan is consistent with a state or regional policy plan, there is no reason to insist that all objectives and policies of a plan "take action in the direction of realizing" the other objectives and policies of the same plan. The meaningful question is whether objectives are in conflict with each other; if not, they are coordinated, related, and consistent.
As found, no other alleged internal inconsistencies were proven beyond fair debate.
Hazard Mitigation
In regard to hazard mitigation, P/I allege several inconsistencies with the state and regional policy plans. But, as already concluded, inconsistency with these plans was not proven.
In addition, many allegations in regard to hazard mitigation also depend on the allegation that Bradenton's plan
allows more residential development than was allowed under the County's plan, and P/I failed to prove the underlying premise.
P/I also alleged that Amendment 00-1ER and the Plan as amended are not in compliance because the City Plan does not adequately plan for natural disasters, potential flooding and damage to coastal areas as required by Sections 163.3177(6)(g) and 163.3178 and Rules 9J-5.012, and 9J-5.013. But it is concluded that the post disaster redevelopment policies added to the coastal element by Amendment 00-1ER meet these requirements. These include Bradenton's Neighborhood Recommendations 12.04A for North Perico, which provides that hurricane evacuation shall be an important factor in reviewing development approvals.
Bradenton's Plan, as amended, incorporates FEMA flood protection regulations by reference. Under Rule 9J- 5.005(10), Bradenton is not required to duplicate FEMA's regulations in its comprehensive plan. The Plan, as amended, also contains policies limiting population in storm vulnerable areas. P/I failed to prove to the exclusion of fair debate that Amendment 00-1ER and the Plan, as amended, fail to meet the statutory and rule requirements regarding planning for natural disasters, potential flooding, and damage to coastal areas.
The City's plan, as amended, also complies with Section 163.3177 (as well as the Regional Policy Plan Goal 3.4) in that the City’s Plan calls for the adoption and the City has in fact adopted Manatee County’s local mitigation strategy to guide its hurricane and disaster planning.
P/I alleged that Amendment 00-1ER fails to adequately plan for hurricane evacuation and sheltering, particularly for North Perico. However, Petitioner offered no credible testimony or evidence to substantiate that allegation. All requirements of Rule 9J-5.012(2)(e)1 were met.
The data as of February 23, 2000, and analysis conducted at the hearing demonstrated that development of the recently annexed portion of North Perico will have insignificant impacts on evacuation times, and that Manatee County has adequate shelter capacity for at least a Category 2 hurricane. A Category 3 or higher hurricane has a much smaller probability of occurrence.
The City through its Plan and by operation of law plays a subordinate role in planning for and managing natural disasters. The primary responsibility for emergency planning and operations, including issuance of evacuation orders and opening of shelters, is the County’s responsibility. Under Bradenton's CM/CE Policy 6.1.1, the City "shall participate in
and cooperate fully in evacuation planning carried out in Manatee County "
Availability of Public Facilities
P/I alleged that Amendment 00-1ER is not in compliance because it does not condition development of North Perico on the provision or adequacy of roadways and utilities as required by Section 163.3180 and Rule 9J-5.006.
P/I have failed to prove beyond fair debate that Bradenton's plan, as amended, does not contain adequate concurrency policies applicable to all development in the City, including North Perico. To the contrary, the City’s evidence demonstrated that the City Plan sets LOS standards for public facilities, conditions development approval upon meeting concurrency, and provides procedures for the implementation and determination of concurrency.
The concurrency management system included in the City Plan is sufficient to the meet the concurrency requirements of Chapter 163. Further, the City has adopted citywide levels of service for all of its public facilities and roadways, which meet Chapter 163 requirements.
P/I alleged that Amendment 00-1ER is not in compliance because the Capital Improvements Element (CIE) does not contain planned capital improvements for roadways and utilities for North Perico. Based on its concurrency
requirements and Plan policies requiring developers pay for public facilities needed to serve proposed development, the City anticipates that developers will pay for provision of roadways and utilities on North Perico. No statutory or rule requirement exists that the City attempt to anticipate private expenditures by developers within its CIE. Rather, Section 163.3177 (3)(a) and Rule 9J-5.016(2)(f) only require that the City Plan for expenditure of City funds. The City's CIE, as amended by Amendment 00-1ER, satisfies these requirements.
P/I also alleged that land use designations on the City’s FLUM should only be assigned if adequate public facilities are available now to serve the property, and that Amendment 00-1ER was not in compliance because the City did not determine whether utilities and roadways were available to serve the property before assigning the land use designation RES-3. But, as found, it was not proven beyond fair debate that Amendment 00-1ER allows any more residential density or development on North Perico--gross or net--than the County's plan did.
Moreover, Chapter 163, Part II, does not require that a FLUM be subjected to and dependent upon a concurrency analysis of the designation of land use designations on the map. The concurrency requirements outlined in Chapter 163, Part II, simply require that a comprehensive plan include
procedures to implement concurrency, so that when specific development proposals are received by a local government, the local government can ensure that roadways, utilities and other public facilities and services are adequate and available to serve the proposed development. The City’s concurrency management program and concurrency determination procedures in Amendment 00-1ER, when coupled with the existing LOS standards in Amendment 00-1ER, are sufficient to meet the concurrency requirements in Section 163.3180.
P/I alleged that Amendment 00-1ER is not in compliance for failure to address the extent to which future development will bear a proportionate cost of facility improvements necessitated by development, so as to maintain standard of service levels. As previously concluded, DCA does not have jurisdiction to review Bradenton's preexisting CIE provisions covering this.
Natural Resources
P/I alleged that Amendment 00-1ER was not in compliance because the Plan, as amended, failed to adequately protect endangered and threatened wildlife and sensitive environmental habitat. But the City’s Plan contains ample policies to meet the requirements of Section 163.3177 and Rules 9J-5.013(2)(b)(4) and 9J-5.012(3)(c). The Plan contains policies which address the designation of environmentally
sensitive land for protection based on locally determined criteria, which further the goals and objectives of the coastal element, and also limit the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources and beach and dune systems.
P/I also alleged that Amendment 00-1ER weakened Bradenton's preexisting policies for wetlands protection. But P/I failed to prove to the exclusion of fair debate that the wetlands policy in the City Plan was actually weakened.
As found, the revised CM/CE Policy 4.2.2 implements the City’s objective to preserve wetlands. It retains the "no cumulative impact" language of the older policy and, at least arguably, gives the City the option to require that the most protective of the listed options for wetlands protection.
In any event, Section 163.3184(6)(c) provides that a local government's comprehensive plan is not required to duplicate or exceed a federal, state, or regional permitting program. To the extent that the City’s change to its wetlands policy recognizes that SWFWMD is the agency to which State has given the responsibility to establish a permitting program to protect wetlands in Manatee County from adverse impacts, Amendment 00-1ER is in compliance by operation of Section 163.3184(6)(c).
In addition, the evidence was that, although broader or wider buffers might provide more protection in most cases, required buffer widths are established at the development permitting stage. Although the County's plan appears to provide for wider buffers than SWFWMD requires, the County has allowed narrower buffers in certain instances during the development permitting stage. For that reason, it is difficult to compare buffer widths under the two plans. In any event, it was not proven beyond fair debate that differences between the two plans regarding wetland buffers render the plans inconsistent or incompatible.
P/I also alleged that the City’s amended wetlands policy in Amendment 00-1ER weakened wetland protections from those in the County’s Plan (as well as from the previous City policy) without adequate data and analysis. As part of its data and analysis, the City relied upon the biological hotspots map and list of endangered and threatened species prepared by the County for the County’s EAR. No evidence presented by P/I indicated that this was not the best available data related to endangered and threatened species.
Data and Analysis
Section 163.3177(8) requires that all elements of a plan be "based upon data appropriate to the element involved."
Section 163.3177(10)(e) provides:
It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data. The department may utilize support data or summaries thereof to aid in its determination of compliance and consistency. The Legislature intends that the department may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted.
However, the department shall not evaluate
whether one accepted methodology is better than another. Chapter 9J-5, Florida Administrative Code, shall not be construed to require original data collection by local governments; however, local governments are not to be discouraged from utilizing original data so long as methodologies are professionally accepted.
Rule 9J-5.005(2)(a) sets out the requirement for data and analysis as follows:
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue.
The statutes and rule do not require data and analysis to be identified or actually relied upon by the local government. See Department of Community Affairs v. City of
Ft. Myers, Case No. ACC-92-002 (Administration Commission Final Order 1992). Data must that be in existence at the time of adoption. adopted. Unlike data, analysis can be added through final hearing. Zemel v. Lee County, DOAH Case No. 90- 7793GM, 1992 WL 880139, 15 FALR 2735, 2773-2775 (DCA 1993),
aff'd, 642 So. 2d 1367 (Fla. 1st DCA 1994).
As found, data and analysis presented by Bradenton in support of Amendment 00-1ER was voluminous. Evidence presented by P/I did not challenge very much of this voluminous data and analysis as being either not the best available or not professionally acceptable. In fact, none of the witnesses had reviewed all of the data and analysis presented in support of Amendment 00-1ER.
P/I argue that Bradenton's Amendment 00-1ER was not supported by data and analysis to the extent that it relied on the County's data and analysis while removing the County's CVSA overlay district and provisions. (As found, the CEA overlay district and provisions were not in the County plan prior to annexation.)
In support of their argument, P/I cite DCA and Responsible Growth Management Coalition v. Lee County, DOAH Case No. 95-0098GM, 1996 WL 1059844 (Fla. Div. Admin. Hrgs. 1996). But in DCA and Responsible Growth v. Lee, the County removed a FLUM overlay designed to reduce residential acreage
allocation, and removal of the overlay had the opposite effect. In this case, since replacement of County planning with Amendment 00-1ER did not result in increased residential density, new or additional data and analysis were not required.
Similarly, P/I cite Pope v. City of Cocoa Beach, DOAH Case No. 90-3580GM, 1990 WL 749217 (Fla. Div. Admin. Hrgs.), 13 FALR 2867 (DCA 1991), a case involving a municipal plan amendment for annexed property, for the proposition that liberalizing residential densities in a coastal high hazard area as compared to those previously applicable under county planning is not "in compliance." But, again, in this case, P/I failed to prove that Bradenton's planning liberalized residential density on North Perico.
P/I cited Wilson v. City of Cocoa, DOAH Case No.
09-4821GM, 1991 WL 832930 (Fla. Div. Admin. Hrgs.), 13 FALR
3848, 3873 (1991), for the proposition that new data and analysis is always required whenever a city plans for annexed land. Actually, the referenced Conclusion of Law in Wilson was:
116. Unless a local government is annexing land over which it has not previously exercised planning jurisdiction, nothing in Chapter 163, Part II, or Chapter 9J-5 requires the addition of new data or analysis to support plan amendments. If the original data and analysis support the amendment, the amendment is consistent with
the criterion of supporting data and analysis.
The opposite--that annexation always requires new data and analysis--is not necessarily true. If, as here, data and analysis supported residential density under County planning just prior to annexation, the County data and analysis could be enough to support municipal density for annexed land which does not significantly change density under the previous County planning.
Since it was not proven in this case that Bradenton's FLUM designations and land use planning for North Perico allowed greater residential density than the County's plan allowed, Bradenton's reliance on the data and analysis obtained from the County to support its land use designations and residential density for North Perico (as well as may other aspects of Amendment 00-1ER) cannot be faulted.
P/I allege that Bradenton failed to use the best available data and analysis to prepare the FLUM for North Perico. That assumes there is a requirement or clear intention that all jurisdictional wetlands be designated Conservation. But there is no such requirement, and the evidence did not prove beyond fair debate that the City intended to include all jurisdictional wetlands in the Conservation zone. Whether in the Conservation zone or not,
they will be protected under other goals, objectives, and policies in Bradenton's plan.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Community Affairs enter a final order finding the City's Amendment 00-1ER in compliance.
DONE AND ENTERED this 16th day of July, 2001, in Tallahassee, Leon County, Florida.
___________________________________
J. LAWRENCE JOHNSTON 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 16th day of July, 2001.
COPIES FURNISHED:
William R. Lisch, Esquire
519 13th Street, West Bradenton, Florida 34205-7418
Daniel J. Lobeck, Esquire
Law Offices of Lobeck & Hanson, P.A. 2033 Main Street, Suite 403
Sarasota, Florida 34237
James A. Minix, Esquire Manatee County | |
Post Office Box 1000 Bradenton, Florida 34306-1000 | |
Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 | |
Gary P. Sams, Esquire Douglas S. Roberts, Esquire Leigh H. Kellett, Esquire Hopping, Green, Sams & Smith Post Office Box 6526 Tallahassee, Florida 32314 | |
Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite | 325 |
Tallahassee, Florida 32399-2100 | |
Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite | 100 |
Tallahassee, Florida 32399-2100 |
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Nov. 01, 2001 | Final Order filed. |
| Aug. 10, 2001 | Petitioner`s and Intervenor Island Cities` Response to City of Bradenton`s and Manatee County`s Exceptions to Recommended Order (filed via facsimile). |
| Aug. 01, 2001 | Manatee County`s Exceptions to Recommended Order filed. |
| Jul. 31, 2001 | Petitioner`s and Intervenor Island Cities` Exceptions to Recommended Order (filed via facsimile). |
| Jul. 16, 2001 | Recommended Order issued (hearing held March 20-23 and 26-30, 2001) CASE CLOSED. |
| Jul. 16, 2001 | Recommended Order cover letter identifying hearing record referred to the Agency sent out. |
| May 25, 2001 | City of Bradenton`s Notice of Filing Disk Copy of PRO and Corrected Page 21 filed. |
| May 24, 2001 | City of Bradenton`s Proposed Recommended Order filed. |
| May 24, 2001 | Notice of Filing Proposed Recommended Order filed by City of Bradenton. |
| May 24, 2001 | Department of Community Affairs` Proposed Recommended Order (enclosing disk) filed. |
| May 24, 2001 | Manatee County`s Proposed Recommended Order filed. |
| May 24, 2001 | Petitioner`s and Intervenor Island Cities` Proposed Recommended Order (enclosing disk) filed. |
| May 11, 2001 | Order Extending Time issued. |
| May 10, 2001 | Department of Community Affairs` Request for Extension of Time to File Proposed Recommended Order filed. |
| May 09, 2001 | Transcript of Proceedings (Volumes 1 through 9) filed. |
| Apr. 04, 2001 | Letter to Judge Johnson from D. Roberts stating delivery of exhibits (8) filed. |
| Mar. 26, 2001 | CASE STATUS: Hearing Held; see case file for applicable time frames. |
| Mar. 20, 2001 | CASE STATUS: Hearing Partially Held; continued to date not certain. |
| Mar. 19, 2001 | City of Bradenton`s Response to Petitioner`s Motion to Compel and for Sanctions filed. |
| Mar. 19, 2001 | City of Bradenton`s Response to Petitioner`s Motion in Limine and for Sanctions filed. |
| Mar. 19, 2001 | Notice of Filing Exhibits to Motion in Limine and for Sanctions, Exhibits filed. |
| Mar. 16, 2001 | Corrected Notice of Telephonic Deposition Duces Tecum, Douglas Means filed. |
| Mar. 16, 2001 | Motion in Limine and for Sanctions (filed by Daniel Lobeck via facsimile). |
| Mar. 16, 2001 | Motion to Compel and for Sanctions (filed by Daniel Lobeck via facsimile) |
| Mar. 16, 2001 | Notice of Hearing (filed by Daniel Lobeck via facsimile). |
| Mar. 16, 2001 | Notice of Telephonic Deposition Duces Tecum filed. |
| Mar. 15, 2001 | Notice of Telephonic Deposition Duces Tecum, Randall Toth filed. |
| Mar. 14, 2001 | Notice of Telephonic Deposition Duces Tecum filed Gary P. Sams. |
| Mar. 14, 2001 | Joint Pre-hearing Stipulation filed. |
| Mar. 14, 2001 | Notice of Telephonic Deposition Duces Tecum, Michael Wood filed. |
| Mar. 08, 2001 | Notice of Continuation of Telephonic Deposition Duces Tecum filed by D. Roberts |
| Mar. 07, 2001 | Order Granting Leave to Amend issued. |
| Mar. 05, 2001 | Notice of Taking Telephone Deposition Duces Tecum, Thomas Pelham (filed via facsimile). |
| Mar. 05, 2001 | Notice of Taking Deposition Duces Tecum, Thomas McCollum (filed via facsimile). |
| Mar. 01, 2001 | Notice of Telephonic Hearing (filed by D. Lobeck via facsimile). |
| Feb. 27, 2001 | Fourth Amended Petition for Formal Administrative Hearing filed. |
| Feb. 27, 2001 | Motion for Leave to File Fourth Amended Petition for Formal Administrative Hearing filed by D. Lobeck |
| Feb. 23, 2001 | Notice and Demand for Expeditious Resolution filed by City of Bradenton. |
| Feb. 22, 2001 | Amended Notice of Taking Deposition Duces Tecum (filed by D. Lobeck via facsimile). |
| Feb. 21, 2001 | Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Feb. 21, 2001 | Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Feb. 14, 2001 | Intervenors`, the City of Anna Marisa Island, the City of Bradenton Beach, and the City of Holmes Beach, Supplemental Answers to Respondent`s Interrogatories (filed via facsimile). |
| Feb. 14, 2001 | Letter to E. Hill from C. Roopnarine In re: response to letter to February 8, 2001 filed. |
| Feb. 09, 2001 | Letter to DOAH from E. Hill In re: mediation (filed via facsimile). |
| Feb. 05, 2001 | Order Compelling Discovery issued. |
| Feb. 05, 2001 | Order Granting Continuance and Re-scheduling Hearing issued (hearing set for March 20 through 23, 2001; 9:00 a.m.; Bradenton, FL). |
| Feb. 02, 2001 | Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Feb. 01, 2001 | Respondent City of Bradenton`s Notice of Withdrawl of Motion to Compel Interrogatory Answers by Petitioner Schember and Partial Amendment of Motion to Compel Interrogatory Answers by Intervenor filed. |
| Jan. 31, 2001 | Defendants` Witness List and Exhibit List filed. |
| Jan. 30, 2001 | Response of Intervenors City of Ann Maria, City of Bradenton Beach and City of Holmes Beach to Respondent City of Bradenton`s Motion for Order to Compel More Complete Answers to Interrogatories and Motion in Limine (filed via facsimile). |
| Jan. 30, 2001 | Amended Notice of Taking Deposition Duces Tecum filed. |
| Jan. 30, 2001 | Amended Motion for Mediation and Continuance of Hearing (filed by Intervener via facsimile). |
| Jan. 29, 2001 | Petitioner Doris Schember`s Response to Respondent City of Bradenton`s Motion to Strike Portions of Petition for Failure to Answer Interrogatories (filed via facsimile). |
| Jan. 29, 2001 | City of Bradenton`s Witness List filed. |
| Jan. 26, 2001 | Order Granting Expedtious Disposition in Part issued. |
| Jan. 26, 2001 | Petitioner Doris Schember`s Answers to Respondent`s Interrogatories (filed via facsimile). |
| Jan. 26, 2001 | Notice of Service of Answers to Interrogatories (filed via facsimile). |
| Jan. 26, 2001 | Notice of Taking Telephonic Deposition Duces Tecum filed. |
| Jan. 26, 2001 | Notice of Service of Answers to Interrogatories (filed via facsimile). |
| Jan. 25, 2001 | Respondent City of Bradenton`s Motion for Expedited Disposition of Motion to Strike Portions of Peition and of Motion for Order to Compel Discovery Responses filed. |
| Jan. 25, 2001 | City of Bradenton`s Motion to Strike Portions of Petition for Failure to Answer Interrogatories filed. |
| Jan. 25, 2001 | Respondent City of Bradenton`s Motion for Order to Compel more Complete Answers to Interrogatories and Motion in Limine filed. |
| Jan. 25, 2001 | Cross-Notice of Taking Deposition (filed via facsimile). |
| Jan. 24, 2001 | Notice of Taking Deposition Duces Tecum 3 filed. |
| Jan. 23, 2001 | Petitioner, Doris Schember`s Response to Department of Community Affairs` Request for Admissions (filed via facsimile). |
| Jan. 19, 2001 | Notice of Service of Answers to Interrogatories (filed via facsimile). |
| Jan. 17, 2001 | Notice of Appearance (filed by D. Lobeck via facsimile). |
| Dec. 19, 2000 | Order Granting Continuance and Re-scheduling Hearing issued (hearing set for February 13 through 16, 2001; 9:00 a.m.; Bradenton, FL). |
| Dec. 19, 2000 | Manatee County`s Consent to Pro Se Motion for Continuance (filed via facsimile). |
| Dec. 13, 2000 | Letter to Judge J. Johnston from J. Hill In re: not attorney of record (filed via facsimile). |
| Dec. 12, 2000 | Notice of Cancellation of Deposition Duces Tecum filed. |
| Dec. 12, 2000 | Response to the City of Bradenton to Pro Se Motion for Continuance filed. |
| Dec. 11, 2000 | Commission to Take Testimony issued. |
| Dec. 11, 2000 | Order to Issue Commission issued. |
| Dec. 11, 2000 | Pro Se Motion for Continuance filed. |
| Dec. 11, 2000 | Intervenor Manatee County`s Notice of Filing Answers to Respondent City of Bradenton Florida`s First Interrogatories filed. |
| Dec. 11, 2000 | Notice of Taking Deposition Duces Tecum of the City of Bradenton Beach; Notice of Taking Deposition Duces Tecum of the City of Holmes Beach; Notice of Taking Deposition Duces Tecum of the City of Ann Maria filed. |
| Dec. 11, 2000 | Notice of Taking Deposition Duces Tecum (3) filed. |
| Dec. 08, 2000 | Respondent City of Bradenton`s Request and Incorporated Memorandum of Law to Appoint Commissioner filed. |
| Dec. 08, 2000 | Notice of Taking Deposition Duces Tecum filed. |
| Dec. 07, 2000 | Department of Community Affaris` Request for Admissions (filed via facsimile). |
| Dec. 05, 2000 | Order Striking Portions of Amended Third Petition and Requiring More Definite Statement as to Paragraph 10.C issued. |
| Dec. 04, 2000 | Petitioner`s Response to the Department of Community Affairs` Request to Produce (filed via facsimile). |
| Dec. 01, 2000 | Order Granting Leave to Intervene issued (city of Holmes Beach). |
| Dec. 01, 2000 | Order Compelling Discovery issued. |
| Dec. 01, 2000 | Notice of Revised Transmittal Instructions Received from the City of Anna Maria filed. |
| Dec. 01, 2000 | Notice of Filing Statement of Identity in Compliance with Conditional Order Granting Counsel Leave to Withdraw (filed via facsimile). |
| Nov. 30, 2000 | Additional Notice of Telephonic Motion Hearing filed. |
| Nov. 28, 2000 | Order Conditionally Granting Counsel Leave to Withdraw issued. |
| Nov. 28, 2000 | Order Compelling Response to Department`s Document Request Only issued. |
| Nov. 28, 2000 | Notice of Telephonic Motion Hearing (on Thursday, November 30, 2000 at 2:15 p.m.) filed. |
| Nov. 28, 2000 | Letter to Judge J. Johnston from J. Gordon In re: request for order on Motion to Withdraw (filed via facsimile). |
| Nov. 21, 2000 | Motion to Strike Portions of Petitioner`s Response filed. |
| Nov. 21, 2000 | Petitioner and Intervenor`s Notice of Withdrawal of Motion to Compel Discovery from Respondent, City of Bradenton (filed via facsimile). |
| Nov. 20, 2000 | Order of Pre-hearing Instructions issued. |
| Nov. 20, 2000 | Response to Motion to Compel filed by Respondent. |
| Nov. 20, 2000 | Notice of Hearing issued (hearing set for January 9 through 12, 2001; 9:00 a.m.; Bradenton, FL). |
| Nov. 20, 2000 | Petitioner`s and Intervenors` Response to City of Bradenton`s Motion to Strike and Alternative Motion for more Definite Statement (filed via facsimile). |
| Nov. 17, 2000 | Petitioner, Doris Schember`s, Answers to Respondent`s Interrogatories (filed via facsimile). |
| Nov. 17, 2000 | Petitioner`s Notice of Filing Answers to Respondent`s Department of Community Affairs, First Set of Interrogatories (filed via facsimile). |
| Nov. 17, 2000 | Petitioner and Intervenors Motion to Compel Discovery From Respondent, City of Bradenton (filed via facsimile). |
| Nov. 16, 2000 | Respondent`s Motion to Compel Discovery filed. |
| Nov. 15, 2000 | City of Bradenton`s Objection to Unconditioned Grant of Motion to Withdraw filed. |
| Nov. 14, 2000 | Letter to Judge J. Johnston from G. Sams In re: request order granting the City`s Motion to Strike and/or Alternative Motion for More Definite Statement filed. |
| Nov. 13, 2000 | Motion to Withdraw (as Counsel of Record, filed by J. Gordon and S. Daniels via facsimile). |
| Nov. 13, 2000 | City of Bradenton`s Response to Initial Order on Remand filed. |
| Nov. 09, 2000 | Joint Response to Initial Order (filed via facsimile). |
| Nov. 06, 2000 | Initial Order on Remand issued. |
| Nov. 03, 2000 | Notice of Filing First Set of Interrogatories to Intervenor, the City of Holmes Beach filed. |
| Nov. 03, 2000 | Respondent, City of Bradenton`s First Set of Interrogatories to Interrogatories to Intervenor City of Holmes Beach filed. |
| Nov. 02, 2000 | CASE REOPENED. (ONE FILE) |
| Oct. 27, 2000 | Order of Remand filed. |
| Aug. 17, 2000 | Recommended Order of Dismissal issued. CASE CLOSED. |
| Aug. 16, 2000 | Petitioner`s Response to City of Bradenton`s Motion for Summary Disposition or Alternative Request for Hearing on any Pending Motions (filed via facsimile). |
| Aug. 16, 2000 | City of Holmes Beach`s Response to the City of Bradenton`s Response in Opposition to the Petition for Intervention by the City of Holmes Beach (filed via facsimile). |
| Aug. 15, 2000 | Petitioner`s Response to the City of Bradenton`s Motion to Dismiss for Lack of Standing(filed via facsimile). |
| Aug. 14, 2000 | Respondent City of Bradenton`s Motion for Summary Disposition, or Alternative Request for Hearing on Pending Motions filed. |
| Aug. 04, 2000 | Notice of Filing First Set of Interrogatories to Intervenor, the City of Anna Maria Island; Notice of Filing First Set of Interrogatories to Intervenor, Manatee County; Notice of Filing Interrogatories to Petitioner; Notice of Filing First Set of Interrogatories to Intervenor, the City of Bradenton Beach filed. |
| Aug. 01, 2000 | Department of Community Affairs` Response to City of Bradenton`s Motion to Dismiss; Department of Community Affairs` Response to the City of Bradenton`s Motion to Strike or for More Definite Statement filed. |
| Jul. 31, 2000 | Petitioners, The City of Anna Maria and the City of Bradenton Beach`s Response to Request for Mediation filed. |
| Jul. 31, 2000 | Notice of Deposition-D. Lucas filed. |
| Jul. 28, 2000 | The city of Bradenton`s Motion to Strike and Alternative Motion for More Definite Statement filed. |
| Jul. 28, 2000 | The City of Bradenton`s Motion to Dismiss for Lack of Standing and Request for Expedited Summary Disposition filed. |
| Jul. 26, 2000 | Request for Copies (J. Minix) filed. |
| Jul. 24, 2000 | The City of Bradenton`s Response in Opposition to the Petition for Intervention by the City of Holmes Beach filed. |
| Jul. 21, 2000 | Ltr. to J. Minix from W. Lisch In re: vacation filed. |
| Jul. 21, 2000 | City of Bradenton`s Motion to Strike the City of Holmes Beach`s Petition to Intervene filed. |
| Jul. 20, 2000 | Department of Community Affairs` Response to Request for Mediation filed. |
| Jul. 20, 2000 | Supplemental Notice of Taking Deposition-J. Perry, A. Cerwin, M. Courtney; D. Schember, A. Rogers filed. |
| Jul. 20, 2000 | Notice of Substitution of Counsel (W. Lisch, G. Sams) filed. |
| Jul. 20, 2000 | Ltr. to C. Roopnarine from W. Lisch In re: stipulation of counsel filed. |
| Jul. 19, 2000 | Notice of Service of Department of Community Affairs` Response to Request to Produce. (filed via facsimile) |
| Jul. 19, 2000 | Department of Community Affairs` Request for Production of Documents to Petitioners filed. |
| Jul. 17, 2000 | Notice of Taking Deposition-J. Perry, A. Cerwin, M. Courtney, D. Schember filed. |
| Jul. 17, 2000 | (J. Minix) Request for Copies; Request for Mediation filed. |
| Jul. 14, 2000 | Request to Produce; Amended Third Petition for Formal Administrative Hearing; Notice of Appearance (S. Daniels) filed. |
| Jul. 13, 2000 | Notice of Service of Department of Community Affairs` First Set of Interrogatories to Petitioners filed. |
| Jul. 12, 2000 | Order on Amended Motion to Strike sent out. (the amended motion is granted as to paragraphs 19A and 20-57 of the second amended petition, the amended motion is denied as to paragraphs 59C and 60 of the second amended petition) |
| Jul. 11, 2000 | Department of Community Affairs` Motion to Strike Portions of Manatee County`s Reply in Support of its Petition filed. |
| Jul. 11, 2000 | Department of Community Affairs` Motion to Strike filed. |
| Jul. 11, 2000 | Department of Community Affairs` Motion to Strike Third Amended Petition filed. |
| Jul. 11, 2000 | Department of Community Affairs` Motion to Strike filed. |
| Jul. 10, 2000 | Petition for Formal Administrative Hearing (Petitioners); Petition to Intervene (The City of Holmes Beach) filed. |
| Jul. 10, 2000 | Notice of Vacation (J. Minix) filed. |
| Jul. 05, 2000 | Notice of Vacation (J. Gordon) filed. |
| Jul. 03, 2000 | Manatee County`s Reply in Support of its Petition for Intervention filed. |
| Jun. 30, 2000 | The City of Anna Maria`s Response to Department of Community Affairs Amended Motion to Strike and the City of Bradenton`s Motion to Strike filed. |
| Jun. 28, 2000 | Amended Notice of Hearing sent out. (hearing set for September 26 through 28, 2000; 9:00 a.m.; Bradenton, FL, amended as to DATE) |
| Jun. 23, 2000 | Order Granting Intervention sent out. (Manatee County) |
| Jun. 23, 2000 | Order Granting Extension of Time sent out. (the city is granted 20 days from the date of this order to file motions responsive to petitioners pleadings) |
| Jun. 23, 2000 | Order Granting Intervention sent out. (City of Anna Maria) |
| Jun. 23, 2000 | Order Granting Intervention sent out. (City of Bradenton Beach) |
| Jun. 23, 2000 | The City of Bradenton`s Response to the Department of Community Affairs` Motion to Reschedule Hearing filed. |
| Jun. 23, 2000 | The City of Bradenton`s Response in Opposition to The Petitions for Intervention by Manatee County, the City of Anna Maria and the City of Bradenton Beach filed. |
| Jun. 22, 2000 | (S. Munn) Order Granting City of Bradenton`s Motion for Extension of Time (For Judge Signature) filed. |
| Jun. 22, 2000 | City of Bradenton`s Amended Motion to Strike; (3) City of Bradenton`s Motion to Strike filed. |
| Jun. 13, 2000 | City of Bradenton Beach`s Petition to Intervene filed. |
| Jun. 13, 2000 | Motion to Reschedule Hearing (Respondent) filed. |
| Jun. 12, 2000 | Petition to Intervene (Manatee County) filed. |
| Jun. 09, 2000 | Department of Community Affairs` Amended Motion to Strike filed. |
| Jun. 09, 2000 | Department of Community Affairs` Amended Motion to Strike filed. |
| Jun. 08, 2000 | Department of Community Affairs` Motion to Strike filed. |
| Jun. 06, 2000 | Petition to Intervene (J. Gordon) filed. |
| Jun. 02, 2000 | Notice of Appearance, City of Bradenton, Respondent; City of Bradenton`s Motion to Strike; City of Bradenton`s Motion for Extension of Time filed. |
| Jun. 01, 2000 | Order of Pre-hearing Instructions sent out. |
| Jun. 01, 2000 | Notice of Hearing sent out. (hearing set for August 21 through 23, 2000; 9:00 a.m.; Bradenton, FL) |
| May 26, 2000 | Joint Response to Initial Order filed. |
| May 26, 2000 | Department of Community Affairs` Motion to Strike filed. |
| May 23, 2000 | First Amended Petition for Formal Administrative Hearing; Second Amended Petition for Formal Administrative Hearing filed. |
| May 22, 2000 | Second Amended Petition for Formal Administrative Hearing filed. |
| May 22, 2000 | Initial Order issued. |
| May 15, 2000 | Agency Referral Letter, Petition for Formal Administrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 31, 2001 | Agency Final Order | |
| Jul. 16, 2001 | Recommended Order | Per Department`s law of case, Petitioner`s comment on notice was enough for standing. Intervenoring nearby local governments failed to prove substantial impact. Recommend finding City`s Amendment 00-1ER in compliance. |
