STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FRANCIS D. HUSSEY, JR. and ) MARY PAT HUSSEY, )
)
Petitioners, )
)
vs. )
) COLLIER COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents, )
)
and )
) JAMES A. BROWN, JR., Trustee, ) d/b/a EAST NAPLES LAND ) COMPANY, FLORIDA WILDLIFE ) FEDERATION, and COLLIER ) COUNTY AUDUBON SOCIETY, INC.; ) VISION & FAITH, INC., and ) SECTION 20 INVESTMENTS, LLC, )
)
Intervenors. )
Case No. 02-3795GM
)
THE 15,000 COALITION, INC. ) and CENTURY DEVELOPMENT OF ) COLLIER COUNTY, INC., )
)
Petitioners, )
)
vs. )
) COLLIER COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents, )
)
and )
) JAMES A. BROWN, JR., Trustee, ) d/b/a EAST NAPLES LAND ) COMPANY, FLORIDA WILDLIFE ) FEDERATION, and COLLIER ) COUNTY AUDUBON SOCIETY, INC.; ) VISION & FAITH, INC., and ) SECTION 20 INVESTMENTS, LLC, )
)
Intervenors. )
Case No. 02-3796GM
)
RECOMMENDED ORDER
On December 3-6, 2002, and January 13-16, 2003, a final administrative hearing was held in these cases in Naples, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioners, Francis D. Hussey, Jr., and Mary Pat Hussey:
John G. Vega, Esquire
201 8th Street, South Suite 207
Naples, Florida 34102-6141
For Petitioners, The 15,000 Coalition, Inc., and Century Development of Collier County, Inc.:
For Respondent, Department of Community Affairs:
For Respondent, Collier County:
For Intervenor, James A. Brown, Trustee:
For Intervenors, Florida Wildlife Federation, Inc., and Collier County Audubon Society, Inc.:
For Intervenor, Vision & Faith, Inc.:
For Intervenor, Section 20 Investments, LLC:
James S. Mattson, Esquire Post Office Box 586
Key Largo, Florida 33037-0586
Shaw P. Stiller, Esquire 2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
Nancy G. Linnan, Esquire
Martha Harrell Chumbler, Esquire Carlton Fields, P.A.
190 Post Office Drawer Tallahassee, Florida 32302-0190
R. Bruce Anderson, Esquire
Lawrence Keesey, Esquire Young, Van Assenderp, Varnadoe,
& Anderson
801 Laurel Oak Drive, Suite 300
Naples, Florida 34101-7907
Thomas W. Reese, Esquire 2951 61st Avenue, South
St. Petersburg, Florida 33712
Richard D. Yovanovich, Esquire Gregory L. Urbancic, Esquire Goodlette, Coleman &
Johnson, P.A.
4001 Tamiami Trail, North Suite 300
Naples, Florida 34103
John C. Clough, Esquire Porter, Wright, Morris
& Arthur LLP
5801 Pelican Bay Boulevard Suite 300
Naples, Florida 34108
STATEMENT OF THE ISSUE
The issue in these cases is whether the Collier County (County) Comprehensive Plan amendments adopted through Collier
County Ordinance Number 02-32 ("the Rural Fringe Amendments" or "the Amendments") on June 19, 2002, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
PRELIMINARY STATEMENT
After the County adopted the Rural Fringe Amendments, DCA reviewed them and, on August 28, 2002, gave notice of intent to find them "in compliance." Francis D. Hussey, Jr., and Mary Pat Hussey (Husseys) filed a Petition for Formal Administrative Hearing on September 17, 2002; The 15,000 Coalition, Inc. (Coalition), and Century Development of Collier County, Inc. (Century), filed one on September 18, 2002. The Department of Community Affairs (DCA) referred both to DOAH on September 27, 2002, along with its Motion to Consolidate Cases and a petition to intervene filed by
James A. Brown, Trustee (Brown), Florida Wildlife Federation, Inc. (FWF), and Collier County Audubon Society, Inc. (Audubon).
On October 1, 2002, the County filed a Demand for Expeditious Resolution under Section 163.3189(3)(b), Florida Statutes,1 and moved to expedite discovery; and counsel for Coalition and Century gave notice of withdrawal as counsel of record. The next day, counsel filed a Motion to Withdraw as Counsel, which was opposed by the clients; and, by agreement of all parties, an emergency telephone hearing was arranged
for later the same day. On October 3, 2002, Brown, FWF, and Audubon were granted leave to intervene; the cases were consolidated; counsel was granted leave to withdraw over objection; final hearing was scheduled for October 31, 2002, to comply with Section 163.3189(3)(b), Florida Statutes; and discovery was expedited. A Motion to Reconsider Order on Motion to Withdraw was denied on October 8, 2002.
On October 15, 2002, the County filed an Agreed Motion to Reschedule Hearing, which was granted; and final hearing was rescheduled for December 3-5, 2002, as agreed.
On October 25, 2002, Coalition and Century fax-filed a Motion to Reschedule Hearing, which was opposed by all parties except the Husseys. Brown, FWF, and Audubon also demanded expeditious resolution under Section 163.3189(3)(b), Florida Statutes. On October 30, 2002, Vision & Faith, Inc. (Vision & Faith), petitioned for leave to intervene, which was granted; and Vision & Faith also opposed the requested continuance during a telephone hearing held on November 7, 2002, at the request of Coalition and Century. Upon consideration of the written and oral arguments, the Motion to Reschedule Hearing was denied.2
Section 20 Investments, LLC (Section 20 Investments), was granted leave to intervene on November 12, 2002.
On November 25, 2002, Coalition, Century, and the Husseys moved to amend their petitions, primarily to add allegations that the Amendments constitute unconstitutional "takings" of their property and that application of Section 163.3189(3)(b), Florida Statutes, to deny a continuance violated their constitutional rights to procedural due process. On
November 26, 2002, the County filed a Motion to Strike or, in the Alternative, Motion in Limine directed to allegations of unconstitutional "takings"; and Coalition and Century filed a Motion to Compel Production of Documents by Friday, 29 November 2002 or, in the Alternative, to Continue the Formal Hearing Until After Said Documents Have Been Produced, Reviewed, and Copied. The latter motion was heard by telephone on November 27, 2002, and was denied.3 Also on November 27, 2002, the parties filed a Joint Prehearing Stipulation; and a Motion for Continuance on Due Process Grounds was filed by Coalition and Century.
On December 2, 2002, a corrected Prehearing Stipulation was filed; a Motion for Partial Summary Final Order Dismissing FWF and Audubon for Lack of Standing was filed by Coalition and Century; and the County filed a Second Motion in Limine, to exclude data not "available" at the time of adoption of the Amendments under Florida Administrative Code Rule 9J- 5.005(2)(a).4
At the outset of the final hearing, the pending motions were heard,5 along with ore tenus motions made by the Husseys (for production of documents from the County) and by Brown (to exclude evidence from unauthorized inspections of Brown's property). After the Motion for Continuance on Due Process Grounds was denied, Coalition and Century moved ore tenus for a stay pending appellate review, which was denied. The County's motions in limine were then granted; the motions to amend the petitions were granted but allegations as to unconstitutional "takings" and procedural due process were stricken6; the Motion for Partial Summary Final Order Dismissing FWF and Audubon for Lack of Standing was denied; and ruling was reserved on the ore tenus motions.
After those rulings, Joint Exhibits 1 through 247 were
received in evidence, and the parties stipulated to the standing of FWF, Audubon, Vision & Faith, and Section 20 Investments.
Coalition, Century, and the Husseys did not finish presenting their cases-in-chief during the three days set aside for final hearing; the remainder of the final hearing was rescheduled for January 13-16, 2003; and they rested their cases-in-chief mid-day on January 14, 2003. The County, FWF and Audubon, Brown, DCA then presented their cases-in-chief.8
The following witnesses testified for Coalition and Century: Joseph Schmidt, Administrator of County Community Development and Environmental Services; William Lorenz, Director of County Environmental Services; James M. "Mac" Hatcher, Environmental Specialist, County Environmental Services; Lonnie Howard, Engineer, Johnson Engineering; Tom Logan, Vice President, Breedlove, Dennis and Associates; William Michael Dennis, Environmental Consultant, Breedlove, Dennis and Associates; Ananta K. Nath, Senior Supervising Engineer, South Florida Water Management District; Henry Fishkind, Principal, Fishkind & Associates; Donald Lester, President of Century Executive Director of Coalition; and Mildred Mercado-Haylock. The following Petitioners' Exhibits were admitted in evidence: 3, 7, 45, 46, 51, 55, 57, 59, 60,
64 through 70, 73, 76, 77, 78, 80, 82, 109, 110, 117, 143,
165, 167, 180, 184, 186, 187, and 189 through 194.9 The
Husseys testified in their own behalf and had Hussey Exhibits 1-3 admitted in evidence.10
The following witnesses testified for the County: James Nicholas, Professor, University of Florida; Robert J. Mulhere, Director of Planning, RWA Consulting; William Lorenz (recalled); and Kevin Erwin, President/Principal Ecologist, Kevin L. Erwin Consulting Ecologist, Inc. The County also had the following County Exhibits admitted in evidence: 3-6, 12-
24, 26, and 27.11 Ruling on objections to County Exhibit 28 was reserved; those objections are now overruled, and the exhibit is admitted in evidence.
DCA called one witness: Michael McDaniel, DCA Administrator of State Initiatives. DCA offered no exhibits.
Intervenors, FWF and Audubon called two witnesses: Randy Kautz, Wildlife Biologist and Administrator, Florida Fish and Wildlife Conservation Commission (FWCC); and Darryl Land, Wildlife Biologist and Panther Section Leader, FWCC. FWF/Audubon Exhibits 1-4 were admitted in evidence.12 Brown called one witness: Geza Wass de Czege, Principal, Southern Biomes. No other evidence was offered by Intervenors.
At the conclusion of the final hearing, the County ordered a Transcript; and the parties requested and were given until February 25, 2003, to file proposed recommended orders (PROs). However, the Transcript was delayed, and the County filed an agreed motion to extend the time for filing PROs13; the time for filing was extended to March 18, 2003, or ten days after the filing of the completed Transcript, whichever was later. When the completed eight-volume Transcript14 was filed, the parties agreed to another extension until March 25, 2003, to file PROs.
Timely PROs were filed by Coalition and Century, the County, DCA, and FWF and Audubon.15 The Husseys filed their PRO late on March 28, 2003, but no party objected.16
On March 31, 2003, the County filed a Motion to Strike and in Limine [sic] directed to portions of the PRO filed by Coalition and Century, as including quotations and references from documents not in evidence; and an "Appendix" thought to have been filed, as consisting of a "computer disc" of files not viewable without special programs and of images not in evidence. Coalition and Century moved without objection17 to extend the time for filing a response until April 11, 2003.
Responses in opposition to the County's motion to strike were filed by the Husseys on April 10, and by Coalition and Century on April 11, 2003; no other party responded to the motion to strike in the time allotted by Rule 28-106.204(1), Florida Administrative Code. The response filed by Coalition and Century included a request for "the Record to be supplemented with the non-record documents" and a "Motion to Treat this Response as Part of Petitioners' PRO," to which DCA filed a response in opposition on April 18, 2003. Based on the filings, the motion to strike is denied but so are the requests by Coalition and Century to add to the evidence of record and to supplement their PRO.
On March 31, 2003, the County also filed a Motion to Clarify the Record. No response was filed in the time allotted by Rule 28-106.204(1), Florida Administrative Code, and the motion is granted to the extent reflected in the list of exhibits, supra, in this Preliminary Statement.
FINDINGS OF FACT
Background
The Amendments at issue in these cases arose from a specific historical background which is relevant to help put them in context. In 1997, the County adopted Evaluation and Appraisal Report-based plan amendments ("EAR-based amendments"). DCA found the EAR-based amendments not to be "in compliance." Following an administrative hearing in which FWF and Audubon intervened, the Administration Commission entered a final order agreeing with DCA's determination.
Joint Exhibit J.3.
The Administration Commission’s final order, entered on June 22, 1999, directed the County to take the following steps in order to bring its comprehensive plan amendments into compliance: (1) rescind those EAR-based amendments found not in compliance; (2) adopt certain specific "remedial" amendments; (3) initiate an assessment of the area of the County designated on the Future Land Use Map ("FLUM") as Agricultural/Rural; (4) adopt interim amendments to remain in
force during the course of the assessment; and (5) no later than June 22, 2002, adopt those plan amendments needed to implement the findings and results of the assessment.
Summary of Rural Fringe Amendments
In response to the Administration Commission's final order on the EAR-based amendments, the County elected to divide its Agricultural/Rural-designated area into two subdistricts-- Rural Fringe and Eastern Lands--for purposes of the assessment and implementing plan amendments. The Rural Fringe subdistrict was designated as "the Rural Fringe Mixed Used District" (or "the Rural Fringe").
The Rural Fringe is described in the amendments as follows:
The Rural Fringe Mixed Use District is identified on the Future Land Use Map. This District consists of approximately 93,600 acres, or 7% of Collier County's total land area. Significant portions of this District are adjacent to the Urban area or to the semi-rural, rapidly developing, large-lot North Golden Gate Estates platted lands.
* * *
The Rural Fringe Mixed Used District provides a transition between the Urban and Estates Designated lands and between the Urban and Agricultural/Rural and Conservation designated lands farther to the east.
The Rural Fringe Mixed Use District employs a balanced approach, including both regulations and incentives, to protect natural resources and private property rights, providing for large areas of open space, and allowing, in designated areas, appropriate types, density and intensity of development. The Rural Fringe Mixed Use District allows for a mixture of urban and rural levels of
service, including limited extension of central water and sewer, schools, recreational facilities, commercial uses and essential services deemed necessary to serve the residents of the District. In order to preserve existing natural resources, including habitat for listed species, to retain a rural, pastoral, or park-like appearance from the major public rights-of-way within this area, and to protect private property rights, the following innovative planning and development techniques are required and/or encouraged within the District.
J.4 at 50.
Under the Amendments, the Rural Fringe was divided into areas designated as Sending, Receiving, or Neutral on the FLUM.18 J.5. Some Sending Areas are also designated Natural Resource Protection Areas (NRPAs).
Receiving Lands "are those lands within the Rural Fringe Mixed Use District that have been identified as most appropriate for development . . . ." J.4. at 51. These lands have been chosen because they "have a lesser degree of environmental or listed species habitat value than areas designated as Sending and generally have been disturbed through development, or previous or existing agricultural operations." Id. Approximately 25,000 acres are designated Receiving Lands.
Receiving Lands "are also located to allow for the provision of central water and sewer and have excellent access to the County's arterial road network." J.11. at 2.
The base density within Receiving Lands is one dwelling unit per five acres. However, through the purchase of development rights from Sending Lands through the Transfer of Development Rights (TDR) program established by the Amendments (discussed in Findings 72-91, infra), Receiving Lands may increase density up to one dwelling unit per acre. Additional density may be obtained if a development preserves more than the minimum required amount of native vegetation.
Limited commercial, industrial, and earth-mining uses are also allowed in Receiving Lands.
Receiving Lands may also be developed as "Rural Villages." The Amendments provide for the possibility of one rural village within each of the four distinct Receiving Areas in the Rural Fringe. The purpose of rural villages is described as follows:
Rural Villages may be approved within the boundaries of the Rural Fringe Mixed Use District in order to: maximize the preservation of natural areas and wildlife habitat within the Rural Fringe Mixed Use District; to reduce the need for residents of the District and surrounding lands to travel to the County's Urban area for work, recreation, shopping, and education; and, to enhance the provision of limited urban and rural levels of service through economies of scale.
J.4 at 62.
The rural villages permitted in the Rural Fringe must consist of compact neighborhoods with nearby neighborhood or village centers. The neighborhood or village centers are
to include retail and office uses; public parks, squares, or greens; civic and government uses; and service facilities.
J.4 at 63. Specific provision also is made for open space in and surrounding the rural village. J.4 at 63-64.
In addition to the one-village-per-district limitation, the amendments impose the following additional locational criteria on a rural village: (1) it must be at least three miles from any other rural village; (2) it must have direct access to an arterial or collector road, or the developer must bear the cost of a new collector road directly accessing the village; and (3) it must be near already- existing or planned public infrastructure, such as water and sewer facilities. J.4 at 63. In addition, a rural village may only be approved if shown to be fiscally neutral to taxpayers outside the village. J.4 at 65.
Neutral Lands "have been identified for limited semi-rural residential development" at a maximum density of one dwelling unit per five acres. J.4. at 55. Limited
commercial, industrial, and earth-mining uses are also allowed in Neutral Lands. Approximately 7,000 acres have been designated as Neutral Lands.
Sending Lands are those lands "that have the highest degree of environmental value" and "are the principal target for preservation and conservation." J.4. at 58. The
residential use of this land is restricted to one dwelling unit per parcel which existed before June 22, 1999, or one unit per 40 acres, whichever yields the greatest density. Nonresidential uses of Sending Land, other than agriculture, are quite limited. There also are specific criteria for the protection of site-specific native vegetation, wildlife habitat, and wetlands. J.4 at 58-62; J.6 at 24, 27, and
29-30.
Some of the land designated Sending is also subject to regulation as NRPA. The purpose of a NRPA designation "is to protect endangered or potentially endangered species and to identify large connected intact and relatively unfragmented habitat, which may be important for these listed species."
J.4 at 79. Designation as a NRPA also limits the intensity and density of development in an area (J.4 at 58-61) and imposes specific restrictions for the preservation of native vegetation, wildlife habitat, and wetlands (J.6 at 24, 27, and 29). The principal additional effect of NRPA designation is to increase the requirement for the retention of native vegetation.
In addition to the changes to the Future Land Use Element (FLUE), the Amendments also affected the Coastal and Conservation Element (CCE), Potable Water Sub-Element, and Sanitary Sewer Sub-Element.
Standing of Petitioners and Intervenors
The evidence was that the Husseys and Brown own property in Collier County and submitted comments regarding the Rural Fringe Amendments between the transmittal hearing and the adoption hearing.
The parties stipulated to the standing of FWF, Audubon, Vision & Faith, and Section 20 Investments. There also was evidence that FWF and Audubon submitted comments regarding the Rural Fringe Amendments at both the transmittal hearing and the adoption hearing and that, at least as of June 14, 2000, they owned property or operated a business in Collier County and had members who reside in Collier County.
Century is a for-profit corporation that has its principal place of business in Collier County. Century owns
12.5 acres of land in Collier County.
According to the testimony of Donald Lester, President of both Century and Waterford Management, Inc., Century is a wholly-owned subsidiary of Century Holdings, a limited partnership. Waterford is Century Holdings' general partner. Waterford, Century, and approximately 300 other entities are limited partners of Century Holdings. All of these entities and the land they own are managed by Waterford.
According to Lester, the various Waterford-managed entities are involved in real estate development and have
spent $42 million (over $30 million in "land basis" and $7-8 million on professional fees and expenses) acquiring land for development in Collier County, including approximately $36 million for approximately 3,500 acres in North Belle Meade (NBM) in the Rural Fringe and approximately $6 million for another approximately 2,000 acres farther east in Collier County. There was no evidence that these lands have obtained any master development approval or are otherwise vested for development.
Coalition is a not-for-profit corporation having its principal place of business in Collier County. Lester is its Executive Director. There was no evidence that Coalition itself owns property or conducts any type of business activity in Collier County, other than commenting on the Rural Fringe Amendments and participating in these administrative proceedings.
Coalition is comprised of approximately 2,000 members. Of these members, approximately 300 are the various entities making up the Century Holdings partnership and managed by Waterford. A total of approximately 320-350 Coalition members own property approximately 3,500 acres in NBM; there was no evidence that the other approximately 1,650 members own property or conduct business in Collier County.
An unspecified number of members own approximately 2,000 acres to the east of NBM in Collier County.
According to Lester, some members voluntarily donate money to the Coalition; others have "been supporting the proceedings" in some unspecified manner.
Lester testified at final hearing that he commented on the Rural Fringe Amendments on behalf of both Century and Coalition during the adoption hearing. He indicated that he filled out and submitted a "speaker card" in order to give his comments and that the card indicated that he was speaking on behalf of both Coalition and Century; but the card was not placed in evidence. The only other evidence on the subject consisted of the transcript of that hearing, which records Lester's introductory statement as follows: "I represent a director of 15,000 coalition. I represent landowners that own property within the TDR area." The transcript also reflects that Robert Diffenderfer commented and stated: "I represent the 15,000 coalition and literally thousands of individuals.
. . . On behalf of coalition and the individuals, I have the list here. There are 4,000 plus of them." While the list was not placed in evidence, it can be inferred from Lester's testimony that it would have included Century and the other Coalition members owning land in Collier County.
Petitioners' Challenges
Petitioners' challenges to the Rural Fringe Amendments were narrowed during the course of this proceeding and now are essentially: (1) whether the County's delineation of Sending and Receiving Lands, especially within the NBM portion of the Rural Fringe, is based upon and reacts appropriately to the best available data19; and (2) whether the TDR Program is based upon and reacts appropriately to the best available data, in particular as to the feasibility of its operation.20
Delineation of Sending and Receiving Lands A. Data and Analysis
The process of delineating Sending and Receiving Lands in the Rural Fringe was involved and complex. The County accumulated and considered a wide range of data in the process. Among the data sources used were: (1) the South Florida Water Management District's (SFWMD's) 1994/1995 Land Use/Land Cover map; (2) Natural Resources Conservation Service ("NRCS") soils survey data; (3) soils tables prepared by Florida soils scientist, Howard Yamataki; (4) the National Wetlands Inventory; (5) true-color aerial photographs provided by the County property appraiser's office; (6) the updated FWCC's "Closing the Gaps" Report; (7) FWCC's updated wildlife and wildlife habitat data, including its Florida panther and
Florida black bear telemetry data and red-cockaded woodpecker colony data, as well as its updated strategic habitat data and Strategic Habitat Conservation Area (SHCA) maps; and (8) the 1999 U.S. Fish and Wildlife Service (USFWS) Multi- Species/Ecosystem Recovery Implementation Team (MERIT) data for South Florida, in particular pertaining to the Florida panther.
The County also actively solicited updated data from property owners and other members of the public. These opportunities for public input included numerous publicly- noticed meetings and hearings before the Rural Fringe Advisory Committee (52 to 53 meetings), the Environmental Advisory Committee, the Planning Commission, and the Board of County Commissioners. At all of these meetings, the public was invited to submit information to the County.
On two occasions, notification was mailed to each property owner in the Rural Fringe, alerting them of the County's consideration of the amendments and inviting their input. The County posted signs on the two main roads entering the Rural Fringe, notifying the public of the on-going evaluation of the Rural Fringe and providing a contact name and telephone number for those wanting further information. The County also solicited information from the public via the County web page.
Members of the public did submit information, some of which resulted in adjustments to the designations ultimately adopted. For example, the County received data from both Audubon and the Collier County School Board regarding red-cockaded woodpecker (RCW) habitat in the northeast corner of NBM. Similarly, Brown submitted information regarding some of his land holdings in NBM that was used in the ultimate delineation of boundaries between Receiving and Sending. The Husseys also submitted data that was considered.
While all information submitted by the public was considered, not all resulted in a change in designation. For example, the County received information regarding jurisdictional wetland determinations on four separate properties and reviewed that information in order to determine whether there was a consistent correlation between jurisdictional determinations and the wetlands land cover information obtained from SFWMD. No consistent correlation was found. In two instances, the jurisdictional wetlands were larger than the area shown as wetlands land cover; in the other two, they were smaller.
Despite ample opportunity, the only information submitted to the County by the Husseys was a limerock mining exploration contract on some of their property; Coalition and
Century did not make any information available to the County between the transmittal and adoption hearings.21
In its analysis of the data, the County recognized that they were collected during different time periods, ranging from the 1980s through 2001. The soils data from NRCS, for example, was developed in the early 1990's from Landsat satellite imagery from 1985-1989, while the panther telemetry data reflected field data through the end of 2001.
SFWMD's data was generated based upon false color infrared aerial photography and reflected changes in land cover through 1995.22 At the time of adoption of the Amendments on June 19, 2002, SFWMD's land use/land cover data was the most recent publicly-available depiction of land uses and land cover in the Rural Fringe.23
Petitioners take the position that the NRCS Soils Survey data was the most accurate data available because it was "ground-truthed." But the NRCS data did not depict land use cover; and it was not proven that the NRCS data accurately and reliably depicted vegetative cover.24
Petitioners also criticized the County for not "ground-truthing" the SFWMD data despite having knowledge of inaccuracies in its depiction of jurisdictional wetlands. But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands,
"ground-truthing" would have required the collection of additional data, as Petitioners' own expert conceded. See Conclusion 105, infra.
The Husseys also argued in their PRO that the NRCS soils survey data should have been used instead of the SFWMD land use and cover data to delineate wetlands because it was "ground-truthed." But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, the NRCS data does not purport to identify jurisdictional wetlands and should not be used as a proxy for the presence of jurisdictional wetlands due to drainage activities, particularly in NBM.
The Husseys had a Lower Tamiami (Aquifer) Recharge/ Discharge map and a map of the County's Wellfield Protection Zones admitted in evidence and argued in their PRO that the County failed to consider these data in delineating Sending Lands and Receiving Lands. To the contrary, the only evidence was that these maps were considered by the County's environmental specialists. Moreover, there was no evidence that these data were in any way inconsistent with the delineation of Sending and Receiving Lands in the Rural Fringe.
Having accepted the SFWMD land cover data as the most accurate indicator of land cover and land uses, the
County "updated" Gaps Report maps of biodiversity hotspot areas (which were based upon 1980 satellite imaging) by removing areas shown on the more current SFWMD maps to have been cleared for agriculture by 1995 or 1996.
Petitioners contended that "updating" the data in this manner made resulting data and analysis inaccurate and misleading by "masking" natural resource information. But those maps were intended to depict features on parts of the Rural Fringe not mapped as agricultural land use cover on SFWMD's land use cover maps. As such, these "updates" reflected the County’s reasonable determination that, while lands cleared for agricultural use can retain natural resource value, they generally have lower environmental and habitat value than uncleared wetland and forest. No evidence suggested that this judgment was unreasonable. The County's analysis resulted in sensible planning decisions that generally afforded undeveloped wetland or forested areas a higher level of protection than land that has been disturbed through agricultural clearing.
Petitioners initially seemed to contend that the
County failed to take into account changes in hydrology and wetland vegetative cover in NBM as a result of drainage canals and similar alterations. As the hearing progressed, however, it became clear that from the evidence that the County was
aware of the changes in hydrology and vegetative cover in NBM and took those changes into account in its planning decisions.
The best data and analysis available as of June 19, 2002, showed that NBM is utilized by both the Florida black bear and the Florida panther. The data and analysis indicate that both of these species make more use of areas to the east (the Florida Panther National Wildlife Refuge and largely undeveloped portions of Northern Golden Gates Estates) and south (the (South) Belle Meade NRPA and largely undeveloped portions of Southern Golden Gates Estates). However, both panther and black bear access NBM from those areas by crossing Everglades Boulevard to the east and Interstate 75 to the south.
A significant population of black bear uses NBM. FWCC lists the Florida black bear as a threatened species. Areas mapped by FWCC as strategic habitat statewide would support approximately five populations of approximately 200 individual black bears. (By comparison, FWCC ideally would like to maintain enough strategic habitat to support ten populations of 200 individuals, in part to reduce adverse impacts from natural disasters and genetic problems from inbreeding.)
FWCC lists the Florida panther as an endangered species. It is one of the most endangered large mammals in
the United States. Only approximately 80 to perhaps 100 panthers are thought to exist in the wild, all in south Florida. The Florida panther faces extinction unless "aggressive action" is taken for its protection.
Panthers require large areas of habitat to survive in the wild. Depending on habitat quality, individual males require a home range of 100-150, 200-250, or even as much as
400 square miles; females have a smaller home range of approximately 50-70 square miles. Notwithstanding its general goal of maintaining ten populations of 200 individuals, FWCC's realistic goal for the Florida panther is to maintain current panther habitat and population.
The (South) Belle Meade NRPA is considered Priority
1 Panther Habitat by FWCC. Other Priority 1 and Priority 2 Panther Habitat exists farther to the southeast and east. While NBM is not as good for panther habitat, radio telemetry data show that panthers also use NBM. Telemetry data show that panther use of NBM has increased in the last ten years. This could be due in part to the introduction of a female Texas cougar as part of FWCC's breeding program. NBM is currently within the home range of at least one male Florida panther and the introduced female Texas cougar. (Other use is possible, as only about a third of the animals in the
population are collared for telemetry.) The female denned and gave birth to three kittens in NBM in 1998.
It is possible that panthers frequented NBM in the late 1990's in part because a ranch lessee on Brown property in Section 21 was operating a deer-feeding station there. Panther telemetry data seem to have decreased after Brown required his lessee to cease those operations. However, while panther may have returned to those feeding stations because of the deer being attracted, they first had to have been in the area to become aware of the deer being attracted. This indicates some panther use of NBM prior to establishment of the feeding station.
FWCC and United States Fish and Wildlife Service data also indicated to the County that red-cockaded woodpecker (RCW) colonies existed in the old-growth forest areas that remain in the western part of NBM, nesting in cavities in these trees. There also were data that FWCC considered these lands to be RCW strategic habitat.
To nest, RCWs need old-growth cavity trees in an area not overgrown with new growth. While there were data that drainage of land in NBM in the RCW strategic habitat area has resulted in invasion of melaleuca (a nuisance exotic species), RCW can continue to use the habitat and forage in and around the melaleuca unless the melaleuca blocks off the
cavity tree. There were no data that RCW no longer use NBM due to melaleuca infestation.
Much of the now-urbanized areas of Collier County once provided RCW habitat, but development has impaired the value of that land for RCW nesting and foraging. As with panther habitat, traditional RCW habitat has diminished under the current regulatory scheme, and additional protection is needed. The non-NRPA Sending Land in the western part of NBM is the last remaining viable RCW habitat that is not already in conservation status.
In gathering and using data in the development of the Rural Fringe Amendments, the County was supported by various state agencies that informally reviewed and commented on the amendments. These agencies supported Collier's approach to the designation of Sending and Receiving Lands.
It is found that the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data.
Sending and Receiving Delineations in General
Petitioners were most critical of the County's alleged exclusive use of the SFWMD vegetative and land use cover maps to delineate Sending Lands based on the presence of jurisdictional wetlands. But the evidence was clear that the
County had no intention of designating Sending Lands solely on the basis of the presence of wetlands. See J.15 at 4 (identifying percentages of wetlands in each category, and showing that the County recognized there were wetlands in Receiving Lands and non-wetlands in Sending Lands).
Petitioners' characterization of the County's effort was a gross oversimplification. It also was clear from the evidence that the County did not restrict its data and analysis to the SFWMD maps.
Petitioners contended that the County ignored the actual boundary of natural features, such as wetlands, in delineating the boundaries of Sending and Receiving Lands. Instead, for planning purposes, the County attempted to delineate reasonably large, contiguous areas as Sending and Receiving Lands, rather than creating a "Swiss cheese pattern" of intermixed Sending and Receiving Lands, designating isolated pockets of Sending within a large Receiving Area, and vice versa. This made sense from a planning perspective, for a number of reasons, including: (1) it permitted concentration of infrastructure, reducing infrastructure costs; (2) it allowed greater opportunity for the protection of environmentally sensitive lands; (3) large, contiguous areas of habitat are necessary to support a viable population for some of the endangered species present in Collier County--
Florida panther, in particular; and (4) it prevented urban sprawl (in part because sufficient acreage must be available in order for higher density development feasible.)
In some instances, the County chose to delineate the boundary between Sending and Receiving Lands with a straight, easily-defined line, rather than using the edge of some feature such as vegetative cover. This also made sense from a planning perspective. A straight boundary, such as a section line, is easier to administer and more easily communicated to the public than a natural feature like vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary.
The County recognized that, as a result of the combined effect of its planning approach, Sending Lands would include some areas neither particularly environmentally sensitive nor--apart from the land surrounding it--valuable habitat. Conversely, some relatively environmentally- sensitive lands would fall within a Receiving Land designation; however, it also recognized that these lands would remain subject to site-specific criteria imposed both by the County's Comprehensive Plan (e.g., amended CCE Policy
6.1.2 criteria for preservation of native vegetation and amended CCE Policy 6.2.3 criteria for protection of wetlands25)
and by state and federal regulatory programs. It was not shown that these planning decisions lacked merit; at the very least, their merit is fairly debatable.
NBM Delineations
Distilled to its essence, the testimony of the natural resource experts called by Petitioners argued that the natural resource data and analysis available at the time of adoption did not justify distinguishing Sending, Receiving, and Neutral Lands in NBM. In other words, their position was that measures for protection of practically the entire NBM would be an appropriate response to the data and analysis on wetland and forest cover and habitat value for Florida panther, Florida black bear habitat, and RCW. But it also is at least fairly debatable that the County's inclusion of Receiving and Neutral Lands in NBM was an appropriate response to the totality of the data and analysis.
The Rural Fringe Amendments themselves include the County's rationale for the North Belle Meade (NBM) Receiving designations.
The Receiving Areas are generally located in the northern portion of NBM [North Belle Meade] Overlay and are generally contiguous to Golden Gate Estates. Two sections are directly to the south of the APAC Earth Mining Operation. The Receiving Area exhibits areas of less environmental sensitivity than other portions of the NBM Overlay, because of their proximity to Golden Gate Estates and prior clearing and disturbance to the land. Within the Receiving Area of the NBM Overlay, are located Sections 21, 28
and the west 1/4 of Sections 22 and 27, which have been largely assembled under one property ownership. These lands are located south of the existing APAC earth mining operation and have been largely impacted by agricultural operations. The location of Sections 21 and 28 is just to the south and west of Wilson Boulevard located in the southern portion of north Golden Gate Estates. Because an earth mining operation and asphalt plant uses have existed for many years in the area, and the surrounding lands in Sections 21, 28 and the western halves of Sections 22 and 27 are reported to contain Florida Department of Transportation grade rock for road construction, these uses are encouraged to remain and expand.
J.4 at 76-77. Section 20 (just west of Section 21) also was designated as Receiving. The southwestern corner of NBM, consisting of Sections 26 (Range 2626), 29, 30, 31, and 32, and the eastern half of Section 36 (Range 26) was designated as non-NRPA Sending, along with the southern halves of Sections
13 and 14 in the northeast corner. The southeastern corner (consisting of the eastern 3/4 of Sections 22 and 27, along with Sections 23, 24, 25, 26, 34, 35, and 36) was designated as NRPA Sending. The northwest corner (Section 24, Range 26) was designated Neutral, as was the northern halves of Sections
13 and 14 in the northeast corner.
The 15,552 acres in NBM are surrounded on the south by the South Belle Meade (SBM) NRPA across Interstate 75; on the east by largely undeveloped portions of Northern Golden Gate Estates (NGGE); on the north by a more developed portion of NGGE; and on the west by Urban Fringe future land use,
which is sandwiched between NBM and more densely developed urban land use to the west.
NGGE is the fastest-growing area of the County. It is part of a proposed sprawling, essentially single-use residential development. To date most actual development in NGGE has occurred in the western part of it, closer to more urban uses, and along Golden Gate Boulevard, which is the main east-west road in NGGE. Because the western part of NBM does not extend as far north as the eastern part, it is farther away from Golden Gate Boulevard and its development than the eastern part of NBM.
In NBM, the SFWMD data showed practically all wetland cover with some upland forest interspersed in the six sections making up the southeast corner of NBM, as well as the next section to the southwest (Section 34). The section of land immediately to the north of Section 34 (Section 27) showed up as wetland cover over approximately the eastern half and agricultural use over approximately the western half of the section. The section north of 27 (Section 22) showed up as mostly wetland cover with some agricultural use in the northwest corner and some forested upland in the northeast corner. To the north of Section 22 was a section (number 15) with a mix of urban use, agriculture, wetland, and forested upland cover. Proceeding to the east, Section 14 showed up as
mostly forested upland, and Section 13 in the northeast corner with mostly wetland cover with some agriculture. The opposite (far western) side of NBM was shown to have approximately eight sections of land with predominately forest land use cover, interspersed with some wetland and agricultural use.
Down the center of NBM are four sections shown by the SFWMD data to have, from north to south: (1) predominately, earth mines and mine pit lakes (Section 16);
(2) predominately agriculture (Section 21); (3) a mix of agricultural, forested upland, and wetland cover (Section 28); and (4) approximately half forested (the southwest half) and half wetland cover (the northeast half) (Section 33).
Of importance for planning purpose, Wilson Boulevard intersects Golden Gate Boulevard and extends south to the edge of NBM at a point approximately 500 feet west of the northeast corner of Section 16. There are plans to extend Wilson Boulevard south into NBM 500 feet west of the eastern boundaries of Sections 16, 21, 28, and 33. Co-location of infrastructure within the right-of-way of the Wilson Boulevard extension would make sense from a planning standpoint. Allowing development to proceed elsewhere in NBM would exacerbate urban sprawl. It also would be possible to locate rural village North Belle Meade near the proposed Wilson Boulevard extension so that public infrastructure could be
provided to both the rural village and the existing residents of NGGE.
While Section 20 includes both cleared and uncleared areas, it abuts NGGE on the north and west and other Receiving Land on the east. For that reason, the County considered it to be appropriate for future development.
Section 28 also includes a "mixed bag" of habitat features and agriculture. However, the remaining forested areas are less valuable as habitat because they are surrounded by agriculture. In addition, prior to the date of adoption, an application had been filed to allow mining in Sections 20 and 28, as well as in Sections 21 and 27. The permit authorizing this mining was issued in December 2002. Once land is disturbed by mining, it loses its value as panther habitat. Taking all of these factors into consideration, the County judged Section 28 to be more appropriately designated as Receiving.
The designation of the western quarters of Sections
22 and 27 as Receiving resulted both from the mixture of disturbed and undisturbed property in those areas and from their location in relation to the planned extension of Wilson Boulevard. This proximity to a planned, future transportation corridor was an important factor in identifying areas appropriate for development.
Initially, all of the western part of NBM was to be designated as non-NRPA Sending Lands because of the RCW data. But the County School Board and Audubon furnished additional data pertaining to the extreme northwest section (Section 24, Range 26), which resulted in the ultimate designation of the land as Neutral.
Even apart from any environmental or habitat distinctions, there are other valid land use planning reasons for the County's Receiving designations. The proximity of the NBM Receiving Lands to the most populous portion of NGGE makes them appropriate for future, mixed-use development. (In contrast, the part of NGGE near the NBM NRPA is not as densely developed and is not growing as fast as the part immediately north of the NBM Receiving Area.)
Since NGGE is a large, single-use residential development, residents are currently required to travel great distances for commercial and other services. By encouraging more compact, mixed-use development in the part of NBM immediately adjacent to the most populous part of NGGE, the County hopes to address this dearth of ancillary, commercial, and institutional uses for the present residents of NGGE, as well as the future residents of NBM. In addition, the NBM Receiving Area is located so as to facilitate an extension of
sewer and water service along Golden Gate Boulevard and, from there, into NBM.
Recognizing that, with updated data, some of these delineations may need adjustment, the County made specific provision in the amendments for owners of Sending and Neutral Lands to submit additional data in support of a change in designation. J.4 at 61.
In summary, it is found that the County's delineations of Sending and Receiving Lands in the Rural Fringe, and in NBM in particular, were based on data and analysis--i.e., they reacted appropriately to the extensive data available to the County on the date of adoption--and accomplish the County's objectives, including protection of environmentally sensitive land and habitat, control of urban sprawl, and successful implementation of the TDR program, which required maintenance of an adequate ratio between Sending and Receiving Lands. See Findings 72-91, infra. At the very least, the delineations are fairly debatable; and the contentions of Coalition, Century, and the Husseys to the contrary are rejected.
TDR Program
The County recognized that the additional restrictions on much of the property within areas designated as Sending may have an effect on property values. As a
consequence, the County included a transfer of development rights ("TDR") program in the Rural Fringe Amendments. The Amendments describe the purpose of the TDR program as follows:
The primary purpose of the TDR process within the Rural Fringe Mixed Use District is to establish an equitable method of protecting and conserving the most valuable environmental lands, including large connected wetlands systems and significant areas of habitat for listed species, while allowing property owners of such lands to recoup lost value and development potential through an economically viable process of transferring such rights to other more suitable lands. Within the Rural Fringe Mixed Use District and within designated areas of the Agricultural/Rural Mixed Use District, residential density may be transferred from lands designated as Sending Lands to lands designated as Receiving on the Future Land Use Map, subject to [certain expressly delineated criteria] . . . .
J.4 at 50-51.
The County's TDR program is an innovative land planning technique that is intended to enhance the protection of environmentally sensitive areas, provide for cost-efficient delivery of public facilities and services, and prevent urban sprawl. J.4 at 50. It is designed to give property owners an incentive to protect their property from development while receiving a return in value through the sale of development rights. In so doing, it also serves as a land management technique to direct development from areas where it is not desired, while preserving the value of that area.
TDR programs balance the protection of areas incompatible with development with the preservation of private
property rights. They are also recognized as a development tool for overcoming urban sprawl.
Through the TDR Program, the owners of Receiving- designated property may increase the allowable residential density on their property by purchasing or otherwise obtaining development credits transferred from property designated as Sending. Forty acres of property in Sending--while assigned an allowable density of only one residential unit--is worth eight development credits (one credit for each five acres).
J.4 at 58. The specifics of the TDR program, including the process for the "sale" of development rights and the tracking of these transactions, are to be established by the County in its Land Development Regulations (LDRs) within one year.
The specific dollar value of a TDR credit will ultimately be decided by the marketplace. Based on a study of land sales in Collier County, the County's expert, Dr. James Nicholas, concluded that a single credit would probably be worth approximately $18,500. Dr. Henry Fishkind, the expert called by Coalition and Century, agreed that this figure is supported by sales data in the area.
For example, a property owner with 40 acres in a Sending area could build one residence on that property, or he could sell eight TDR credits to someone who plans to develop a more compact development in a Receiving Area. J.4 at 58-59.
If the Sending Land owner elects the latter, he retains ownership of his property and may still utilize it for certain specifically identified purposes, including agriculture, passive parks, passive recreational uses, certain essential services, and oil extraction. J.4 at 60-61.
A property owner with 40 acres in a Receiving area could build eight residences on that property without purchasing any development credits, or he could purchase 32 TDR credits and build 40 residences. Once he has obtained enough TDR credits to achieve this one-to-one density, he could further increase his residential density slightly by preserving more than the minimum required native vegetation on site. J.4 at 51.
Dr. Nicholas warned that an excess supply of TDR credits, relative to the amount of Receiving Land available to receive those credits, would undermine the success of the TDR program. The ratio of Receiving Land to Sending Land is critical. Dr. Nicholas prefers a ratio of at least two acres of Receiving Land to each acre of Sending.
This ratio is not achieved within the Rural Fringe.
Rather, the ratio is approximately 1:1 (25,729 acres of Receiving to 23,720 acres of Sending). See J.15 at 4 (which lists the acreages within each category).
Taking into consideration Sending Lands that are already developed, Dr. Nicholas testified that approximately 4,100 TDR credits would be generated from the Sending Lands. Approximately 6,100 credits could be absorbed in the Receiving areas, where densities of up to one unit per acre--an increase of four additional units--can be achieved through a purchase of TDR credits. J.4 at 51.
In order to bolster the demand for TDR credits, the Rural Fringe Amendments include a number of other additional markets for credits. First, the amendments provide for a limited transfer of TDR credits outside of the Rural Fringe for two purposes: (1) in-fill in the Urban Area on parcels of
20 acres or less; and (2) transfer from areas within one mile of the Urban boundary into lands designated Urban Residential Fringe. J.4 at 34-35. These two options will create a market for approximately 1,000 additional TDR credits (250 as urban in-fill and 750 in the urban fringe.)
In addition, the Amendments provide a market for TDR credits for the development of rural villages. See Findings 11-13, supra, for description of rural villages. Rural villages must be at least 300 acres in size, up to a maximum of 1,500 acres, with the exception that a rural village located south of the (South) Belle Meade NRPA, which is south of Interstate 75, may be as large as 2,500 acres. The minimum
and maximum gross densities for a rural village outside NBM are two units per acre and three units per acre, respectively.
J.4 at 63. Thus, a rural village outside NBM must include at least 600 residential units, but could have as many as 4,500 or 7,500, depending upon its location.
For each TDR credit purchased for the development of a rural village, the purchaser receives one bonus, up to the minimum required density, and the minimum density can only be achieved through the combination of base density, TDR credits, and TDR bonuses. J.4 at 64. Additional density--up to the maximum of three units per acre--can be achieved through the purchase of more TDR credits, through the preservation of more native vegetation on site than the minimum required, and/or through the inclusion of affordable housing. J.4 at 64.
Consequently, for a rural village of 1,500 acres outside NBM, the developer would need to build at least 3,000 dwellings (2 units per acre). Assuming that the rural village is surrounded by a 800-acre greenbelt,27 it would start with a base density of 460 units28 and would need to purchase 1,270 TDR credits in order to achieve his minimum density of two units per acre.
The provisions applicable to the one rural village permitted in NBM differ slightly. There, the minimum gross density is 1.5 units per acre, of which at least 0.5 units per
acre must be obtained through the purchase of TDRs. J.4 at
Assuming the same 1,500-acre development with an 800-acre greenbelt as described above, the developer would need to acquire 1,790 units more than would be available through the combined base densities of the village itself and the greenbelt in order to achieve minimum density.29 Of these additional units, 750 would have to be obtained through the purchase of TDR credits.
Recognizing that there will probably be no more than two or three rural villages developed, Dr. Nicholas estimated that rural villages will absorb between 4,000 and 7,500 TDR credits, with the greater probability that the absorption rate will be closer to the lower number. Thus, in combination with the other markets for TDR credits created by the amendments, Dr. Nicholas estimated that there will be a demand for approximately 11,100 credits, resulting in a more acceptable ratio of just under three units of demand to one unit of supply.
In their PRO, the Husseys attempted to raise the specter that the Amendments create too large a market for TDR credits so as to trigger Dr. Nicholas' concerns that, in that situation, potential transfers would be frustrated because TDR prices would rise to levels making their use infeasible for potential users, including developers of rural villages. But
the Husseys based their concerns on maximum potential absorption of TDR credits, raising the supposed ratio of TDR buyers to sellers to 7-to-1 (or even 8-to-1 by disregarding the Urban Fringe one-mile limitation described in Finding 82, supra). The greater weight of the evidence was that the realistic market for TDR credits will be much smaller than the maximum potential absorption rates. Taking the realistic market into account, the probable actual absorption ratio is not much more than 2-to-1, which is ideal according to Dr.
Nicholas.
It also should be noted that the Husseys' arguments run counter to the testimony of their own expert on the subject. Dr. Fishkind agreed with Dr. Nicholas that there will be a functioning market for TDR credits generated from the Sending Areas, that the County’s TDR program is economically feasible, and that the County has the capacity to administer it.
In addition, the Amendments include specific provisions requiring the County to establish a process for evaluating the TDR program. J.4 at 62. The purpose of such monitoring will be to assess whether revisions, such as the addition of either more Sending or Receiving Land or a change in the value of TDR credits, are necessary to ensure the success of the program.
In concept, the success of the TDR program in achieving the objectives of directing development away from some areas and toward others, while preserving value in the former, is at least fairly debatable. The program's actual success in achieving these objectives initially hinges upon whether the County has appropriately designated Receiving and Sending Lands. If necessary, changes can be made to improve the program and increase its chances of success.
CONCLUSIONS OF LAW
Jurisdiction and Standing
Jurisdiction over these proceedings is based on Section 163.3184(9), Florida Statutes. Under that statute, only an "affected person" has standing. Under Section 163.3184(1)(a), Florida Statutes:
"Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review . . . . Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with adoption of the plan or plan amendment.
In this case, the Husseys and Brown clearly have standing, and standing has been stipulated as to the other Intervenors.
It is concluded that Century proved standing through ownership of property and operation of a business in Collier County and through the comments of Donald Lester and Robert Diffenderfer at the adoption hearing, which fairly must be viewed as having been made on behalf of Century as well as Coalition.
Comments clearly were made on behalf of Coalition at the adoption hearing. But there was no evidence that Coalition itself owns property or operates a business in the County. In that way, Coalition is in the same posture as 1000 Friends in St. Joe Paper Co., et al. v. Dept. of Community Affairs, et al., 657 So. 2d 27 (Fla. 1st DCA 1995). There, it was held that 1000 Friends had no standing where there was no evidence that it had any connection to Walton County beyond submittal of oral or written comments, recommendations, or objections to the County between the transmittal hearing and adoption hearing for the comprehensive plan at issue in that case. The court characterized the level of participation of 1000 Friends in that case as an "incidental and transient presence" that "does not suffice under section 163.3184(1)(a)." St. Joe Paper, supra at 29. The court continued: "Rather, the statute contemplates a more substantial local nexus, of a type which might make the business potentially subject to the constraints of the local
comprehensive plan." Id. Contrast 1000 Friends of Florida, Inc. vs. Department of Community Affairs, DOAH Case No. 01- 0781GM, 2001 WL 1174557 (DOAH 10/02/01, DCA Final Order
12/28/01) (finding standing by two organizations based on evidence that they operated businesses within the local jurisdiction that could potentially be constrained by the local comprehensive plan); Responsible Growth Management Coalition, Inc., and Dept. of Community Affairs v. Lee County, ER FALR 96:118 at 23 (Conclusions of Law 167 & 168) (Admin.
Comm'n 1996), Recommended Order, 1996 WL 1059844 (Fla.Div.Admin.Hrgs.)(organization's standing in part on proof "that it did much more in Lee County than just participate in the local comprehensive planning process. It also has offices in Lee County and conducts educational programs in Lee.") Since Coalition did not prove standing based on its own property ownership or operation of a business in the County, the remaining issue is whether Coalition can assert "associational standing."
The requirements for "associational standing" in proceedings under Section 120.569 and 120.57(1), Florida Statutes, are set out in Florida Home Builders Ass'n v. Dept. of Labor and Employment Security, 412 So. 2d 351 (Fla. 1952). Under Florida Home Builders, instead of having to prove that the association's own substantial interests would be affected
under the standards set out in Agrico Chemical Co. v. Dept. of Environmental Reg., 406 So. 2d 478 (Fla. 2d DCA 1981), the association would have to prove that a substantial number of its members would meet the Agrico test.30
In St. Joe Paper Co., supra at 28, the court stated in part: "Section 163.3184(1)(a) provides a more expansive definition of an affected person who may participate in the section 120.57 proceeding held pursuant to section 163.3184(10)(a)." But the court also stated:
Although the Commission refers to the broad statement of legislative intent to encourage the fullest public participation in the comprehensive planning process, as recited in section 163.3181(1), Florida Statutes, this legislative edict is made in connection with a statutory directive for local governmental units to adopt procedures to ensure such participation. Section 163.3184(7) further requires the local government to review written comments submitted by any person. By contrast, however, section 163.3184(10)(a) specifies that a person must be an "affected person" in order to participate in the section 120.57 proceeding.
Id. Section 163.3184(9)(a) Florida Statutes, also specifies that a person must be an "affected person" in order to participate in the Section 120.57 proceeding.
It is concluded that, if an association itself does not meet the "more expansive definition of an affected person who may participate in the section 120.57 proceeding held pursuant to section 163.3184," it still may prove standing if a substantial number of its members meet the definition of
"affected person." It also is concluded that, in this case, Coalition proved "associational standing" based on the evidence that at least 320-350 of its 2,000 members own property in the County and that comments were made on their behalf during the adoption hearing.
Compliance Criteria
Section 163.3184(1)(b), Florida Statutes, sets out the compliance criteria for this case:
"In compliance" means consistent with the requirements of ss. 163.3177, 163.31776, when a local government adopts an educational facilities element, 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.
Out of these compliance criteria, only Section 163.3177, Florida Statutes, and Florida Administrative Code Rule Chapter 9J-5, are pertinent to this case.31
Burden of Proof and Standard of Proof
Absent a statutory directive to the contrary, the burden of proof generally is on the party (or parties) asserting the affirmative of the issue in an administrative proceeding. Young v. Dept. of Community Affairs, 625 So. 2d 831 (Fla. 1993); Balino v. Dept. of Health, etc., 348 So. 2d
349 (Fla. 1st DCA 1977). In this case, the County, DCA, and the Intervenors are asserting the affirmative of the issue:
that the Amendments are in compliance, i.e., that they are "consistent" with the requirements listed in Section 163.3184(1)(a), Florida Statutes.
Since DCA issued notice of intent to find the Rural Fringe Amendments to be "in compliance," Section 163.3184(9)(a), Florida Statutes, provides that the Amendments "shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." This language has been interpreted consistently as shifting the burden of proof to the party seeking to establish noncompliance.
"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." Martin v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Yusem court stated further:
An ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.
Id.
Data and Analysis
Section 163.3177(8), Florida Statutes, requires all elements of comprehensive plans to be "based upon data
appropriate to the element involved." Section 163.3177(10)(e), Florida Statutes, 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), Florida Administrative Code, provides in pertinent part:
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue.
* * *
(c) Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate
methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies. Among the sources available to local governments are those identified in "The Guide to Local Comprehensive Planning Data Sources" published by the Department in 1989. Among the sources of data for preliminary identification of wetland locations are the National Wetland Inventory Maps prepared by the U.S. Fish and Wildlife Service.
Future Land Use Element data and analysis requirements are set out in Florida Administrative Code Rule 9J-5.006(1)-(2). Conservation Element data and analysis requirements are set out in Florida Administrative Code Rule 9J-5.013(1). It was not proven that the County failed to meet those requirements in adopting the Rural Fringe Amendments.
To the contrary, the evidence was that the County used the very data sources identified in DCA's rule, together with much more. Collection of original data, including that involved in "ground-truthing" data sources, was not required. Section 163.3177(10)(e), Florida Statutes; Florida Administrative Code Rule 9J-5.005(2)(b).
Data not available to a local government at the adoption hearing cannot be considered to either support or challenge a plan amendment. Zemel v. Lee County, 15 FALR 2735, 2773-74 (DCA 1993), aff’d, 642 So. 2d 1367 (Fla. 1st DCA 1994). Even if in existence as of the date of adoption, data cannot be relied upon if it was not available to the local government. Depositing boxes full of documents, including
technical reports requiring expertise to interpret, in the back of the adoption hearing room at the end of a two-day adoption hearing, just before the vote was taken, does not make them "available" to the local government.
Based on the findings, it is at least fairly debatable that the County used appropriate existing and available data, analyzed it appropriately and in a professional manner, and reacted to the data and analysis appropriately.
Other Consistency Requirements
Essentially, Petitioners contend that data and analysis showed, and additional appropriate data and analysis would further substantiate, the existence of jurisdictional wetlands and wildlife habitat in Receiving Lands in the Rural Fringe. They contended that, as a result, the Rural Fringe Amendments failed to protect those natural resources. But Section 163.3177(5)(d), Florida Statutes, only requires that comprehensive plans provide for "conservation, use, and protection of natural resources in the area . . . ." It is at least fairly debatable that the Rural Fringe Amendments do this. It also is at least fairly debatable that the Amendments meet the requirements of Florida Administrative Code Rule 9J-5.0013(3)(a) that "wetlands and the natural functions of wetlands shall be protected and conserved."
In their PRO, the Husseys attempted to raise inconsistency with Rule 9J-5.006(3)(c)6--requiring "[p]rotection of potable water wellfields by designating appropriate activities and lands uses within wellhead protection areas, and environmentally sensitive land"--and with Rule 9J-5.011(2)(b)5 and (c)4--requiring that goals, objectives, and policies "[a]ddress protecting the functions of natural groundwater recharge areas and natural drainage features" and "[r]egulating land use and development to protect the functions of natural drainage features and natural groundwater aquifer recharge areas." These issues were not raised timely. See Endnote 19. But even if they were, there was no testimony or evidence that the Rural Fringe Amendments were inconsistent with the rule. (The only evidence on the subject was that parts of Receiving Lands overlapped parts of the wellfield protection zone and parts of the area mapped as "Lower Tamiami [Aquifer] Recharge/ Discharge.")
The Husseys also argued in their PRO that the TDR
program in the Rural Fringe Amendments would not function properly and would fail to achieve their conservation goals.32 But the greater weight of the evidence was to the contrary, as found. Clearly, based on the findings and evidence, the feasibility of the TDR program is at least fairly debatable.
Disposition by ALJ and DCA
Under Section 163.3184(9)(b), Florida Statutes, the ALJ submits the recommended order to DCA. If DCA determines that the plan or plan amendment is "in compliance," DCA issues the final order. (Only if DCA determines that the plan or plan amendment is not in compliance does DCA shall submit the RO to the Administration Commission for final agency action.)
RECOMMENDATION
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 Collier County's Rural Fringe Amendments to be "in compliance."
DONE AND ENTERED this 29th day of April, 2003, 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 29th day of April, 2003.
ENDNOTES
1/ Unless otherwise noted, all Florida Statutes citations are to the 2002 codification.
2/ Section 163.3189(3)(b), Florida Statutes, provides in pertinent part that "no continuance . . . may be granted without the written agreement of the parties absent a finding by the administrative law judge of extraordinary circumstances." The statute continues: "Extraordinary circumstances do not include matters relating to workload or need for additional time for preparation or negotiation."
3/ The County filed Affidavits in further support of this ruling at the outset of the final hearing, and this ruling was placed on the record at that time.
4/ Unless otherwise noted, all Rule references are to the current version of the Florida Administrative Code.
5/ At the outset of final hearing, Coalition and Century filed a Supplement to Their Pending Motion for Continuance on Due Process Grounds.
6 / As to the "taking" issue, Section 163.3161(9), Florida Statutes, provides in pertinent part: "Any such relief must be determined in a judicial forum."
7/ The Joint Exhibits include an introductory list
identifying the exhibits.
8/ Neither Vision & Faith nor Section 20 Investments presented any evidence.
9/ Petitioners' Exhibits in evidence were recapped at page
208 of Volume VII of the Transcript. However, the recap overlooked several Petitioners' Exhibits that were admitted after being moved by the Husseys during cross-examination of a witness called in the County's case-in-chief. (Tr. Vol. VI,
p. 1115) Petitioners' Exhibit 60 in evidence was not supplied until April 2, 2003. Petitioners' Exhibit 81 never was supplied and is deemed withdrawn. For identification of Petitioners' Exhibits, see the corrected Joint Prehearing Stipulation.
10/ The Hussey Exhibits consist of: 1. Composite Panther, Bear, and Red-Cockaded Woodpecker data supplied by Collier County; 2. Panther data by year; and 3. LABINS website information.
11/ The County Exhibits include an introductory list identifying the exhibits.
12/ The FWF/Audubon Exhibits consist of: 1. Resume of Randy Kautz; 2. Blackbear Roadkill: Collier County (Map); 3. Kautz notations regarding RCW; and 4. Resume of Darryl Land.
13/ All parties agreed to an extension at least until March 11, 2003, or ten days after filing of the completed
Transcript. The Husseys wanted until March 18, 2003, or ten days after filing of the completed Transcript. Coalition and Century wanted the date set after filing of the completed Transcript.
14/ The completed Transcript consisted of Volumes I-VII, with two Volume VIIs. Pagination for the first seven volumes (prepared by one court reporter) was consecutive; pagination started over at page one in Volume VII [sic](prepared by a second court reporter.)
15/ In addition, the PRO filed by FWF and Audubon adopted parts of the County's PRO, and the other Intervenors adopted the County's PRO in its entirety. (Vision and Faith's Adoption and Joinder was filed late on April 7, 2003.)
16/ Also late (on March 27, 2003) and without objection, the Husseys adopted the PRO filed by Coalition and Century.
17/ The motion recited that the County did not object; no other party responded in the time allotted by Rule 28- 106.204(1).
18/ Conservation (37,156 acres) and Industrial (335 acres) also were designated.
19/ The Husseys attempted to add issues as to aquifer recharge and wellfield protection during the final hearing, and DCA objected. Testimony and evidence as to those subjects was received as being possibly relevant to the agreed issue as to delineation of Sending and Receiving Lands; but DCA specifically objected to amendment to add new issues by
consent. In making the argument in their PRO, the Husseys cited Rules 9J-5.006(3)(c) and 9J-5.011(2)(b)5, characterizing them as data ignored by the County. However, consistency of the Rural Fringe Amendments with those rules was not properly made an issue in this proceeding.
20/ Coalition and Century did not address this issue in their PRO.
21/ Someone on behalf of either Century or Coalition or both made a belated attempt to provide information to the County by depositing several boxes full of documents at the back of the hearing room at the end of the second day of the adoption hearing, just prior to the vote on adoption. It appeared that, at most, only one County staff member (who happened to be seated in the back of the hearing room at the time) even knew the material had been placed there. At most, that staff person was told that the information pertained to the Rural Fringe Amendments. Much of the information required expert analysis to understand. For these reasons, this information was not made "available" to the County between the transmittal and adoption hearings; and it was excluded from evidence at final hearing. See Conclusion 105, infra.
22/ There was some testimony that it was based on aerial photography from 1995 and 1996, but that testimony does not seem to be correct.
23/ The generation of land cover and land use data from the County property appraiser's 1999 true-color aerial photographs would require special expertise in the interpretation of true- color aerial photography--expertise the County does not have. In addition, the information produced from such an interpretation would be new data, not just analysis of existing data. See Conclusion 106, infra.
24/ The evidence also did not prove the contentions in the PRO filed by the Husseys that the NRCS soils survey data accurately and reliably depicted "good wildlife habitat in the absence of funding and actual management."
25/ The argument in the Husseys' PRO that wetlands in Receiving Lands have no protection under the Rural Fringe Amendments is unfounded.
26/ Most of NBM lies in Township 49, Range 27; the exceptions are Sections in Township 49, Range 26, which are noted as such.
27/ Rural villages are required to be surrounded by a greenbelt averaging 500 feet in width. J.4 at 64. This greenbelt is not included in the calculation of a rural village's overall size. J.4 at 63. However, the density that would otherwise be available on the greenbelt acreage may be transferred into the rural village. J.4 at 64-65.
28/ 1,500 acres in village + 800 acres in greenbelt = 2,300 acres
2,300 acres/5 units per acre = 460 base units
29/ 1,500 acres x 1.5 = 2,250 total units
2,250 total units – 460 base density units = 1,790 units to achieve minimum density
30/ New Section 403.412(6), Florida Statutes (2002), would not apply to Coalition since there was no evidence that Coalition was formed for the purpose of protecting the environment, air and water quality, or fish and wildlife resources. See Sellers and Sellers, "Legislature Revises Citizen Standing Under Section 403.412(5): The 'Devil's Deal' or Much Ado About Nothing?", Administrative Law Section Newsletter, Vol.
XXIII, No. 4, June 2002, suggesting that Section 403.412(6) replaces the Agrico standard for certain environmental not- for-profit organizations in certain proceedings. It also does not appear that the new statute would apply to proceedings under Section 163.3184(9).
31 / As indicated by Section 163.3184(1)(b), Section 163.3161(9)--stating legislative intent to "recognize and respect judicially acknowledged or constitutionally protected private property rights"--is not a compliance criterion.
32/ Coalition and Century did not mention this issue in their PRO.
COPIES FURNISHED:
John G. Vega, Esquire
201 8th Street, South Suite 207
Naples, Florida 34102-6141
James S. Mattson, Esquire Post Office Box 586
Key Largo, Florida 33037-0586
Nancy G. Linnan, Esquire
Martha Harrell Chumbler, Esquire Carlton, Fields, Ward,
Emmanuel, Smith & Cutler, P.A. Post Office Box 190
Tallahassee, Florida 32302-0190
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Thomas W. Reese, Esquire 2951 61st Avenue, South
St. Petersburg, Florida 33712-4539
R. Bruce Anderson, Esquire Young, van Assenderp,
Varnadoe & Anderson, P.A. Post Office Box 7907 Naples, Florida 34101-7907
Richard D. Yovanovich, Esquire Jonathan D. Fishbane, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300
Naples, Florida 34103
Kevin R. Lottes, Esquire John C. Clough, Esquire
Porter, Wright, Morris & Arthur, LLP 5801 Pelican Bay Boulevard, Suite 300
Naples, Florida 34108
Colleen M. Castille, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Cari L. Roth, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
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 | Document | Summary |
|---|---|---|
| Jul. 22, 2003 | Agency Final Order | |
| Apr. 29, 2003 | Recommended Order | Challenge to Collier County`s Rural Fringe Amendments did not prove they were unsupported by data and analysis or otherwise inconsistent with compliance criteria. |
