STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DON AND PAMELA ASHLEY, SIERRA ) CLUB, INC., and PANHANDLE )

CITIZENS COALITION, INC., )

)

Petitioners, )

)

vs. )

) DEPARTMENT OF COMMUNITY AFFAIRS ) and FRANKLIN COUNTY, )

)

Respondents, )

)

and )

) ST. JOE COMPANY and EASTPOINT ) WATER AND SEWER DISTRICT, )

)

Intervenors. )

Case Nos. 05-2361GM

05-2730GM

)

SUPPLEMENT TO RECOMMENDED ORDER

A Recommended Order was entered in this case on June 12, 2006. An Order of Remand was filed on July 18, 2006, requesting that the undersigned address two disputed issues of material fact from the Prehearing Stipulation, namely 9 and 19. By Order on Remand entered on July 21, 2006, the remand was accepted, and the parties were given until August 4, 2006, to file argument and a proposed supplement to the Recommended Order on those issues.

Joint proposed supplements to the Recommended Order were timely filed, one by Petitioners and one by the other parties, and both have been considered in the preparation of this Supplement to Recommended Order.

SUPPLEMENTAL FINDINGS OF FACT

1. Potable Water

   
   

   1. Disputed issue of material fact 9 from the Prehearing Stipulation is: Whether or not the Ordinance, including Infrastructure Element Policies 2.19-2.22, is consistent with Section 163.3177(6)(c), Florida Statutes, and whether Policy 2.19 establishes a potable water level of service that exceeds the existing actual potable water demand, and whether that level of service is supported by the best available existing data. The only part of this issue addressed in the proposed recommended orders (PROs) was framed in paragraph 77 of Don Ashley's PRO:

      "It is beyond fair debate that Franklin's establishment of a LOS of 150 GPCPD through 2020 is not based upon the best available existing data."

   2. The dispute between the parties actually was whether the potable water level of service standard established in Policy

      2.19 was high enough, not whether it exceeds the existing actual potable water demand. The County, St. Joe, and DCA presented data and analysis (D&A) to support a LOSS of 150 gallons per capita per day (GPCPD). This is less than projected water demand reflected in some D&A. However, there was evidence to support the lower number--namely, evidence that the higher numbers in some of the D&A were skewed by higher peak tourist water use and did not accurately reflect average water consumption throughout the County. While Petitioners disputed the evidence and cross-

      examined St. Joe's expert on the subject, they put on no expert testimony of their own on the subject and did not prove beyond fair debate that a county-wide potable water level of service standard of 150 GPCPD was not supported by D&A.

2. Need for Residential and Non-Residential Uses

1. Disputed issue of material fact 19 from the Prehearing Stipulation is: Whether or not the Ordinance is supported by a demonstration of need for residential and non-residential land uses based upon professionally-acceptable data and analysis, as required by Sections 163.3177(6)(a) and (10)(e) and 163.3177(8), Florida Statutes, and Florida Administrative Code Rules 9J- 5.005(2) and (7), 9J-5.006(1),(2),(4), and (5), and 9J-11.007.

2. Actually, since the Recommended Order addressed the adequacy of D&A to support the need for residential land uses, the issue on remand is limited to the need for non-residential land uses--specifically, commercial and industrial.

3. The D&A Franklin submitted to DCA with the adopted 2020 Plan included needs analyses based on FSU's population and employment forecasts. One analysis demonstrated a need for approximately 371 additional acres of commercial land by 2020. Another indicated no significant need for additional industrial land through 2020:

   Given projected industrial employment and typical densities for development in the county, their [sic] appears to be adequate land on Franklin County's Future Land Use Map [sic] appears to meet demand through the planning period. Other than demand the chief

   reason for allocating industrial land is to provide adequate buffering to the county's two municipal airports.

   
   

4. Petitioners suggest that the FSU D&A shows a surplus of

   
   

   14 acres of industrial land through 2020. Actually, it initially shows 113 acres of existing industrial land (plus 580 acres of industrial connected with airports and their runways) and 99 acres of industrial land needed in 2020. Under FSU's methodology, "demand for new acres was increased by 20% to provide for locational choice." However, in FSU's Table 1-10, the adjustment factor was applied to a negative number (99-113), resulting in no increase "to provide for locational choice." Under those circumstances, it might have made more sense to apply the adjustment factor to the 99 acres of existing industrial lands, which would result in a need for 6 additional acres in 2020, instead of a surplus of 14.

5. It also would seem logical to increase need for both commercial and industrial land as a result of the population growth ultimately projected by the County, which was higher than projected in the FSU population forecasts, although no such analysis was in evidence explicitly. As noted in paragraph 15 of the Recommended Order, FSU’s draft needs analyses did not demonstrate a need for additional residential units. While based upon a professionally-acceptable methodology utilizing population projections from the University of Florida, FSU's analysis did not take into consideration appropriate and relevant data

   regarding recent residential growth trends in Franklin County. Dr. Henry Fishkind testified that, because of the development of three master-planned communities that utilize new types of housing plans (specifically SummerCamp, St. James Bay, and Gramercy Plantation), Franklin County is attracting residential populations that would not have otherwise relocated to the County based on historical trends alone. Consequently, he testified Franklin County is “on the cusp” of significant structural change, and the County reacted appropriately by taking this change into account in projecting population growth and residential need. Mr. Gauthier, Petitioners’ own expert planning witness, and their only witness on adequacy of the County's needs analyses, conceded that Dr. Fishkind's need analysis figures were “within the realm of acceptability” and did not warrant a “not in compliance” finding by DCA.

6. In addition, there was D&A that Franklin County is designated a rural area of critical economic concern, which means that it is “an economically distressed county, [that] needs jobs,

   . . . economic development, [and] . . . revenue.” See also Section 288.0656, Florida Statutes, and Executive Order 99-275, Executive Office of the Governor (as officially archived online at www.myflorida.com/myflorida/government/laws/index.html).

7. Petitioners presented no expert testimony that the totality of the needs analyses, including the higher population

   projections for 2020, did not support a need for more than 371 acres of commercial land and 6 acres of industrial land in 2020.

8. On the supply side of the equation, Petitioners contend that the FLUMAs allocate significantly more than 371, more like 650, acres of commercial uses. As pointed out in the Recommended Order, this contention does not account for applicable provisions of the Franklin zoning code and presumes an unlikely absolute maximum possible allocation of commercial acres in each of the three mixed use FLUMAs allowing commercial use. Petitioners presented no expert testimony that such a presumption is appropriate for purposes of determining whether the County over- allocated commercial uses.

9. With respect to the supply of land allocated for industrial uses through 2020, the CEV FLUMA represents the only possible additional allocation of land for industrial use. However, industrial use only is allowed as part of a "Business and Industrial Park." Under FLUEP 2.25, which applies to CEV, no industrial use is required, and the absolute maximum possible allocation of acreage to "Business and Industrial Park" would appear to be 140 acres, less 25 percent required minimum open space, or approximately 105 acres, which also is the absolute maximum possible allocation of acreage to industrial, assuming that the entire "Business and Industrial Park" use would be devoted exclusively to industrial uses. However, as pointed out in the Recommended Order, it was not clear what the "other

   Applicable Provisions of the Franklin County Zoning Code" were or how they might impact the absolute maximum possible allocation of acreage to industrial uses. Then, the 25 percent maximum FAR would apply.

10. As with the supply of land for commercial use, Petitioners presented no expert testimony that it is appropriate to presume the unlikely absolute maximum possible allocation of acreage to industrial uses for purposes of determining whether the County over-allocated industrial uses. Petitioners also provided no expert testimony that the D&A was inadequate to support an additional opportunity for industrial development in the CEV FLUMA, or that the FLUMAs over-allocated industrial uses. Petitioners' only planning expert, Mr. Gautier, testified in general terms that the County's needs analyses were adequate and declined to testify that the County's 2020 Plan was not in compliance because it over-allocated either commercial or industrial land. Meanwhile, witnesses for the other parties testified that the 2020 Plan was based on the best available data and professionally acceptable analyses, that the County appropriately responded to the D&A in preparing the Plan update, and that the 2020 Plan was "in compliance." For these reasons, Petitioners' contention that the FLUMAs over-allocate commercial and industrial uses was not proven beyond fair debate.

    SUPPLEMENTAL CONCLUSIONS OF LAW

    
    

11. None required.

SUPPLEMENTAL RECOMMENDATION

No change.

DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida.

S

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 11th day of August, 2006.

COPIES FURNISHED:

Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Suite 100

Tallahassee, Florida 32399-2100

David L. Jordan, Acting General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard Suite 325

Tallahassee, Florida 32399-2160

Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Gary P. Sams, Esquire Hopping, Green & Sams, P.A.

123 South Calhoun Street Post Office Box 6526

Tallahassee, Florida 32314-6526

Thomas M. Shuler, Esquire Shuler & Shuler

Post Office Box 850

Apalachicola, Florida 32329-0850

M.B. Adelson, IV, Esquire

Law Offices of M.B. Andelson, IV 3387 East Lakeshore Drive Tallahassee, Florida 32312-1456

Don Ashley

Post Office Box 430

Sopchoppy, Florida 32358-0430

Ross S. Burnaman, Esquire 1018 Holland Drive

Tallahassee, Florida 32301-4508

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Parties have the right to submit written exceptions within 15 days from the date of a Recommended Order. Any exceptions to a Recommended Order should be filed with the agency that will issue the Final Order in this case. Presumably, the same procedures apply to this Supplement to Recommended Order since the DCA's Order of Remand does not state otherwise.

Docket for Case No: 05-002361GM

Orders for Case No: 05-002361GM