STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT ALESSI, RONALD CAPRON, ) CHAD HANSON, VICTOR LAMBOU, and ) DAVID WESTMARK, )

)

Petitioners, )

)

vs. )

) WAKULLA COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

)

BRAD SUBER, )

)

Intervenor. )

Case No. 03-0052GM

)

ORDER ON REMAND

This Order is entered pursuant to the Order entered by the Secretary of the Department of Community Affairs on October 8, 2003 (the "Remand Order") that remands this case to the Division of Administrative Hearings. It takes into consideration three filings of the parties: Joint Response of Respondents Wakulla County, Florida and Department of Community Affairs to Order, Intervenor's Adoption of Wakulla County Response and Additional Response to Order of Remand, and Petitioners' Response to Order Reopening File. In response to the Remand Order and the filings of the parties, the following is found and ordered:

No Further Proceedings Necessary

1. None of the parties support convening a hearing or re- opening the record. "There is no new evidence that would provide a basis for re-opening the case." Joint Response of Respondents Wakulla County, Florida and Department of Community Affairs, paragraph 7. "Intervenor concurs with Wakulla County that it is not necessary or appropriate to reopen the administrative hearing in this case." Intervenor's Adoption of Wakulla County's Response and Additional Response to Order of Remand, paragraph 2. Similarly, the Petitioners' response is devoid of a suggestion that the record be re-opened or further proceedings convened.

   Positions of the Parties

   
   

2. Wakulla County (the "County") and the Department urge that the Recommended Order "[e]liminat[es] the failure of the County to consider the best available data at the time of adoption as a basis to find the amendment not in compliance," (Joint Response, paragraph 5) and since "the basis in the Recommended Order for the not in compliance determination has been removed, the recommendation should be that the future land use map amendment be found in compliance." Id., at paragraph 8.

3. Intervenor Suber concurs with the County and the Department but suggests more. Most1 of the suggestions are based on arguments that certain findings of the Recommended Order are

   not based on competent, substantial evidence. Lack of competent substantial evidence for a finding of fact is a basis for an agency to reject or modify the finding in an agency final order. It is not, in the judgment of this administrative law judge, an appropriate basis for a remand.

4. In contrast, Petitioners argue that the record in these proceedings is sufficient to support findings of fact and conclusions of law that the amendment is not in compliance with various provisions in statute and rule.

5. While the parties read the findings of fact and conclusions of law differently, they appear to agree that the Recommended Order is sufficient for the exercise of a final decision by the Department that accepts or rejects the conclusions of law in the Recommended Order that are within the Department's substantive jurisdiction.

6. Nonetheless, in order to be responsive to the Secretary's Remand Order, the following is offered.

   Response to the Remand Order

   
   

7. The conclusion in the Recommended Order that the amendment at issue is not in compliance is based, in part, on the nature of the amendment and events in the amendment process. The amendment2 is a map amendment. It amends the Future Land Use Map (the "FLUM") of Wakulla County. A proposed amendment that re-designated 266 acres of the property at issue drew the

following objections and recommendations from the Department in its ORC report quoted in Finding of Fact 58 of the Recommended

Order:

Objections, Proposed Amendment 3: The proposed map amendment does not demonstrate the suitability of this site for development considering the extensive wetlands and floodplains in the areas that are proposed for conversion to the Urban-1 Future Land Use Category. The proximity to the water table to the land surface, existing karst sinkhole features, extensive wetlands and

100 year floodplain indicate a high potential for water quality degradation and ground water contamination. Development of the southwestern portion of the site would require constructing road access through extensive wetlands and would place the single access road within the 100 year floodplain. Potential isolation of this site during floods creates the potential for public safety, emergency management and evacuation problems.

The proposed amendment is not consistent with Rule 9J-5.006(2)(b)1. and (2)(e), FAC, concerning site suitability; Rule 9J-5.-- 6(3)(b)4, requiring protection of natural resources; Chapter 163.3178(d)(d) concerning public evacuation during natural disasters; and Rule 9J-5.006(2)(c) and Chapter 163.3177(6)(a) concerning need analysis.

Recommendations:

1. The land use change should be limited to the northern parcel with road access. The large, contiguous areas of wetlands and floodplain areas and the southern isolated parcel should not be included in this proposed land use change to the Urban-1 Future land Use Category at this time.

2. Designation of the wetland areas as Urban on the FLUM implies a development potential. Wetlands and floodplains should be designated appropriately on the FLUM to prevent encroachment from incompatible land uses. Currently, the Conservation Future Land Use Category as written in the County's comprehensive plan is intended only for publically [sic] owned lands. This category could be amended to also afford protection to environmentally sensitive, privately owned land.

   
   

3. A needs analysis of the Urban 1 and 2 areas of Crawfordville should be done to support the need for the proposed land change.

Consistency with Chapter 187, Florida Statutes.

The proposed amendment is not consistent with the following provisions of Chapter 187, FS:

187.201(10), FS, [sic] concerning the protection of ecological systems such as wetlands.

187.201(16), FS, concerning direction development to areas that can accommodate growth in an environmentally acceptable manner and the separation of urban and rural uses.

By addressing the objections noted in Section I., these inconsistencies with Chapter 187, FS, can be addressed.

See Joint Ex. 2, p. 223-4.

1. In response to these objections and recommendations in the ORC Report, the County changed the proposed amendment to excise 64 acres of the Large Wetland on the property from what would have been re-designated under the Amendment as Urban-1.

   This left the 64 acres under a designation with less intense development potential.

2. The County eliminated 64 acres from the proposed re- designation on the basis of a FLUCCS map that showed the Large Wetland to constitute 63.8399 acres of the property, a figure less than 2/10ths of an acre shy of 64. See Endnote 1. The FLUCCS Map was incorrect. The best data available at the time of the County's adoption of the Amendment, but not considered by the County, however, was presented at the de novo administrative final hearing. It showed the Large Wetland to constitute at least 85 acres of the property, if not more. It is inferred from the County's response to the Department's ORC Report that the County intended to remove from re-designation all of the contiguous Large Wetland (not a portion of it) that bisects the property. The Department, in turn, determined the Amendment with the Large Wetland removed to be in compliance despite Florida Administrative Code Rule 9J-5.006(4)(b)4:

   (4)Future Land Use Map.

   
   

   * * *

   
   

   (b) The following natural resources or conditions shall be shown on the future land use map or map series;

   
   

   * * *

   
   

   4. Wetlands;

   The best data available at the time of its adoption shows that the Large Wetland consists of at least 85 acres. Yet, approximately 25% of the Large Wetland's acreage on the property were omitted in the County's excision of the Large Wetland from the re-designation and were not otherwise identified on the FLUM.

3. In the Remand Order, the Secretary writes that "the original failure of the County to consider the best available data at the time of adoption . . . is not the test." Remand Order, p. 5. The test, according to the Remand Order is found in Zemel v. Lee County, 15 FALR 2735 (Fla. Dept. Com. Affairs 1993), aff'd, 642 So. 2d 1367 (Fla. 1st DCA 1994) (per curiam), and it is "whether the evidence entered at the hearing throws the amendment out of compliance". Id.

4. At the invitation of the Department and based on the Findings of Fact in the Recommended Order, the conclusion of law is reached that the Amendment to the Wakulla County FLUM is inconsistent with the following provisions of Florida Administrative Code Rule 9J-5.005, that were cited in the ORC as a basis for the Department's objection of inconsistency with the proposed amendment:

(2) Land Use Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C.

* * *

(b) An analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available:

1. Gross vacant or undeveloped land area, as indicated in paragraph (1)(b);

   
   

2. Soils;

   
   

3. Topography;

   
   

4. Natural resources; and

   
   

5. Historic resources;

* * *

(e) An analysis of the proposed development and redevelopment of flood prone areas based upon a suitability determination from Flood Insurance Rate Maps, Flood Hazard Boundary Maps, or other most accurate information available.

The evidence shows that the County set out to cure the suitability problem brought to its attention by the Department's ORC by removing all of the Large Wetland from the re- designation. An examination of the best data available at the time of the Amendment's adoption, the analysis and the evidence provided at the de novo hearing in this case reveals that the County did not do so. It omitted approximately 25% of the Large Wetland from retention in the original designation. The FLUM amendment remained inconsistent with the above-cited provisions of Florida Administrative Code Rule 9J-5.005 after the County's

response to the Department's ORC. The recommendation that the Amendment be determined to be "not in compliance" stands.

DONE AND ORDERED this 29th day of October, 2003, in Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

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 October, 2003.

ENDNOTES

1/ There is also an argument made by Intervenor Suber with regard to the use of the FLUCCS Map. There is no dispute, however, as to whether the FLUCCS Map used by Wakulla County constitutes a "professionally accepted source" within the meaning of Florida Administrative Code Rule 9J-5.005(2)(c). It does. The Recommended Order concluded as much. See paragraph

134 of the Recommended Order and compare to paragraph 12., of Intervenor Suber's response.

2/ Wakulla County Ordinance 2002-28 adopted October 21, 2002, contained several amendments to the County's comprehensive plan. The amendment to the FLUM was one of these. The other amendments were text amendments.

COPIES FURNISHED:

Terrell K. Arline, Esquire 3205 Brentwood Way

Tallahassee, Florida 32308-2705

Debra A. Swim, Esquire 1323 Diamond Street

Tallahassee, Florida 32301

Donna Biggins, Esquire

515 North Adams Street Tallahassee, Florida 32301

Craig Varn, Esquire

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

Sherry A. Spiers, Esquire

Law Offices of Robert C. Apgar, P.A.

320 Johnston Street Tallahassee, Florida 32303

Colleen M. Castille, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Docket for Case No: 03-000052GM

Orders for Case No: 03-000052GM