STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA WILDLIFE FEDERATION, ) INC.; FRIENDS OF MATANZAS, ) INC.; PATRICK HAMILTON; and ) WILLIAM HAMILTON, )
)
Petitioners, )
)
vs. )
)
TOWN OF MARINELAND and )
DEPARTMENT OF COMMUNITY )
AFFAIRS, )
)
Respondents, )
)
and )
) CENTEX HOMES d/b/a CENTEX ) DESTINATION PROPERTIES, )
)
Intervenor. )
____ )
Case No. 05-4402GM
RECOMMENDED ORDER
On March 7-9, 2006, a final administrative hearing was held in this case in Marineland, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioners: Thomas W. Reese, Esquire
2951 61st Avenue South
St. Petersburg, Florida 33712-4539
For Respondent, Town of Marineland:
Dennis K. Bayer, Esquire
306 South Oceanshore Boulevard Flagler Beach, Florida 32136
For Respondent, Department of Community Affairs:
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Intervenor: David C. Ashburn, Esquire
Sherry A. Spiers, Esquire Greenberg Traurig, P.A. Post Office Drawer 1838
Tallahassee, Florida 32302-1838 STATEMENT OF THE ISSUES
The main issue in this case is whether the Town of Marineland's Comprehensive Plan Amendments adopted by Ordinance 2005-1 on August 18, 2005,1 are "in compliance," as defined by Section 163.3194(1)(b), Florida Statutes (2005).2 Another issue is whether Petitioners have standing.3
PRELIMINARY STATEMENT
On November 21, 2005, Petitioners (along with Phil Cubbedge) served and filed with the Department of Community Affairs (DCA) a Petition for Hearing contending that the Plan Amendments are not "in compliance." On November 23, 2005, Petitioners served a First Amended Petition for Hearing (dropping Mr. Cubbedge) (Amended Petition).4 On December 5, 2005, the matter was referred to the Division of
Administrative Hearings (DOAH) for assignment of an Administrative Law Judge to conduct a hearing on the Amended Petition. Discovery proceeded, Centex Homes, d/b/a Centex Destination Properties (Centex) intervened, and the case was set for final hearing on March 7-10, 2006, in Marineland.
On February 8, 2006, Centex filed a Demand for Expedited Hearing under Section 163.3189(3)(a)-(b), Florida Statutes, which did not seek a change in the scheduled final hearing dates.
On February 28, 2006, Centex filed a Motion to Strike Portions of First Amended Petition and Motion in Limine (Motion). On March 2, 2006, a Pre-Hearing Stipulation was filed. On March 3, 2006, Petitioners filed a Response in opposition to Centex's Motion.
At the outset of the final hearing, the caption was amended to drop Phil Cubbedge, in accordance with the Amended Petition; oral argument was heard on Centex's Motion, which was denied; and Joint Exhibits 1-3 were received in evidence.
Petitioners called the following witnesses: Phil Cubbedge; Town Mayor James C. Netherton, III; Susan R. Parker, Ph.D., an expert interpreter of documents from Spanish colonial Florida; Paul Johnson, an expert in marine biology, marine ecology, and coastal zone planning and management; Patrick Hamilton; Michael Greenberg, Ph.D.; Sarah Owen,
Planning Advocate for the Florida Wildlife Federation (FWF), Northeast Office, and an expert in comprehensive and other land use planning; and George William (Bill) Hamilton. The following Petitioners' Exhibits were admitted in evidence: 1, 3-6, 8-11, 14-19, 21, 26-30, 32-36, 46-47(A), and 50.5
Petitioners' Exhibits 43-45 and section 1816 of the Florida Building Code were officially recognized. Objections to the following Petitioners' Exhibits were sustained: 12-13, 20, 39, 40(A), and 42. Petitioners' Exhibit 22 consisted of two maps, numbers 6.3 and 6.8; map 6.3 was admitted, but objections to map 6.8 were sustained. Ruling was reserved on objections to Petitioners' Exhibits 7, 25, and 47(B); at this time, the objections to Exhibits 25 and 47(B) are overruled, and the exhibits are received, but the objections to Exhibit 7 are sustained.
The Town called Michael Brown, Planner for the Northeast Florida Regional Planning Council (RPC), and an expert in drafting and implementing comprehensive plans, but did not offer any exhibits.
Centex called the following witnesses: Robert Pennock, Ph.D., an expert in comprehensive and other land use planning; Henry Fishkind, Ph.D., an expert in economics; William Michael Dennis, Ph.D., an expert in environmental analysis; Donald C. Lewis, an expert in hurricane evacuation planning and
hurricane clearance time evaluations and analysis. Centex also had Intervenor's Exhibits 8, 21, 22, 25, and 26 admitted in evidence.
DCA called Joseph Addae-Mensa, Ph.D., a Senior Planner who reviews local government comprehensive plans for DCA, and had DCA Exhibits 1 and 2 admitted in evidence.
When the presentations of evidence concluded on March 9, 2006, Centex ordered a transcript, and the parties were given ten days from the filing of the transcript to file proposed recommended orders (PROs). The Transcript was filed (in four volumes) on March 30, 2006, making PROs due April 10, 2006.
The parties filed timely PROs.
On April 13, 2006, Centex moved to strike portions of Petitioners' PRO. Petitioners filed a Response in opposition on April 17, 2006. No other party responded in the time allotted by Florida Administrative Code Rule 28-106.204(1).6 Based on the filings, Centex's motion to strike portions of Petitioners' PRO is granted in part and denied in part.
Specifically, it is granted as to PRO ¶104.o. and FLUE Policy A.1.12.2, but it is otherwise denied.7 In accordance with this ruling, due consideration has been given to the post- hearing filings.
On April 19, 2006, Petitioners filed a Request for Official Recognition of Petitioners' Exhibits 41 (A-C). The
request is denied for some of the reasons given in Centex's Response in Opposition.
FINDINGS OF FACT
Background
The Town of Marineland is unique. Its history is not only interesting but helpful to an understanding of why the Plan Amendments may or may not be "in compliance," and also why Petitioners may or may not have standing.
Marineland originated as the Marine Studios, which was created so that oceanic life would exhibit natural behavior that could be filmed for feature Hollywood films. The Marineland Attraction (Attraction) followed, and the new word "Oceanarium" was coined. The Attraction was the first marine theme park and served as the model for those that followed. The Town of Marineland was created in 1940 essentially to provide support services for the Attraction.
Eventually, the Attraction's founding members died, and the property was sold to a group of St. Augustine investors, with the new entity being called Marineland, Inc. The investors looked at the property as a real estate investment, and the 1992/2005 Plan reflects this vision, calling for a community of 1500 persons and 600 dwelling units. The Town and the Attraction remained interdependent, with the Attraction being the entity that generated revenue
and provided for most of the financial needs of the Town. As the face of Florida tourism changed during the 1970's and 1980's, fewer and fewer people came to Marineland, opting instead for the high profile attractions in the Orlando area. Rather than being a profit center for the investors that allowed them leisure to develop the rest of the land at their convenience, the Attraction became a money sink and required the investors to put money in each year to keep the facility going. This was an untenable situation in the long run and ultimately Marineland, Inc., sold its holdings to Marineland Ocean Resort (MOR), which split off another entity, the Marineland Foundation, to manage the Attraction. The Marineland Foundation operated under the umbrella of the Town of Marineland and not specifically as part of MOR.
As this was happening, the Town of Marineland found itself having to be self-sufficient for the first time in 55 years. It needed to assume all the trappings of a municipal government and deal with matters that had previously been handled in whole or part by Marineland, Inc. During all these changes various attorneys examined different aspects of the Town's operation and found certain deficiencies. The most serious for land use planning was that the Town had not followed through after adoption of the 1992/2005 Plan and adopted any sort of land development regulations (LDRs).
Simultaneously, MOR was considering how to develop the land it had bought. Its model was timeshares, and it considered turning the two oceanfront hotels into timeshare units, building an additional oceanfront timeshare hotel, selling timeshare campground slots, selling timeshare marine slips, and building timeshare units along the riverfront in the maritime hammock. Since the town had no LDRs, MOR would have had a free hand to build anything it pleased.
To remedy this deficiency as quickly as possible the Town passed: Ordinance 97-1, which adopted the Flagler County development code provisions for signage, storm water and drainage, wetlands, tree protection, road construction and coastal construction; Ordinance 97-2 to adopt various standard codes relating to amusement devices, buildings, fire prevention, gas, grading, housing, mechanical, plumbing and swimming pools; and Ordinance 97-3 establishing zoning districts and providing for zoning regulations. Ordinance 97-
3 allowed for medium-density housing at four units per acre in the disturbed and cleared areas and at two units per acre in the the partially-disturbed maritime hammock. The intention was to prevent the rest of the maritime hammock, a rapidly disappearing environment throughout Florida and an environment of special concern, from being cleared for river-view timeshare units along the Intracoastal Waterway (ICW). The
Town wished to balance the need to preserve important lands with the need to rebuild the town and regain lost population. It was not clear from the evidence how many units of residential development would be allowed under Ordinance 97-3, but it would be less that under the 1992/2005 Plan or under the Plan Amendments.
Shortly after these ordinances were passed, MOR, which had been struggling financially and unable to realize any of its development plans, filed for bankruptcy and sale of their holdings. Its attorneys expressed great concern about the effect of the town ordinances on the pending bankruptcy and sale, and pointed out that when MOR filed, the court froze the status quo, preventing the Town from amending the 1992/2005 Plan's future land use map (FLUM) to reflect Ordinance 97-3.
The Trust for Public Land (TPL) was successful in purchasing the MOR holdings from the bankruptcy proceedings. The result was a substantial reshaping of the land ownership within the Town. Approximately 90 acres of the most vulnerable lands were purchased from TPL with grant money from Florida Communities Trust (FCT)and set aside for conservation. The University of Florida's Whitney Marine Lab purchased additional land to double its holdings, and Jacoby
Development, Inc. purchased about 40 acres of the disturbed lands for development.
Concurrent with these activities, DCA awarded two planning grants to the Town under the Remarkable Coastal Place Program. The purpose of the grants was to enable the Town to take advantage of state experts in various aspects of community planning who could help the Town reorganize itself, recover its lost population, and rebuild itself from the ground up. It became apparent during this work that the Town would need a new comprehensive plan, not simply an update to the existing plan, in order to reflect the different structure of land ownership and to support the vision that the stakeholders had created during the planning process of a sustainable community that would be a center of science, education, recreation, and ecotourism. This was begun while state expertise was still available to the town, and once again incorporation of Ordinances 97-1, 97-2, and 97-3 into the existing comprehensive plan and FLUM was put on the back burner, since a new set of LDRs would have to be written to support the new comprehensive plan work in progress.
Existing Uses
The Town's existing land uses are distributed into two major categories: those found within and those found outside the River-to-Sea Preserve.
The Preserve
Approximately 89 acres of the total 151+ acres of the Town is off-limits to development through protection in the River-to-Sea Preserve. The River-to-Sea Preserve is undeveloped and vegetated with maritime hammock, coastal strand, beaches, dunes, and approximately eight acres of salt marsh within the Town's boundaries. The land has experienced significant disturbance in some areas. However, the majority of the site consists of native forested and non-forested vegetative communities.
Lands covered with coastal scrub growth dominated by saw palmetto are located along the barrier dunes and to some extent to the west along the southern border of the Town but mostly seaward of the Coastal Construction Control Line regulated by Florida Department of Environmental Protection. This is a rapidly-disappearing community, and some sites harbor numerous endangered species. For that reason, it is one of three which has been designated by the Florida Fish and Wildlife Conservation Commission (FFWCC) as a "Rare and Unique Upland Community" within Florida. Development to the south of the Town has left these scrublands as an isolated remnant of the former community. The Preserve protects approximately seven acres of the coastal scrub community located in the Town.
The Preserve protects three-fourths (32.6 acres) of the coastal hammock community located in the Town. The coastal hammock community also has been designated as a "Rare and Unique Upland Community" by the FFWCC. This community provides valuable cover and feeding areas for migratory songbirds in fall and spring as they migrate down the Atlantic Coast.
Running the length of the Town along the Atlantic Ocean are 8.9 acres of beach area, an area of unconsolidated material that extends landward from the mean low water line to the primary dune system. The north and south ends of the beach are in the Preserve.
Outside the Preserve
Development in the Town, outside the Preserve, includes the existing Oceanarium facilities, the Whitney Lab, and the presently closed marina facility.
Approximately 2.2 acres in the northeastern portion of the Town between A1A and the Atlantic Ocean contain the two original Oceanarium tanks of Marineland and has been included in The National Register of Historic Places. The Marine Park of Flagler has purchased the MOR property and intends to revitalize these areas.
The Whitney Lab consists of the Whitney Laboratory for Marine Bioscience and the Marine Education Building, all
operated by the University of Florida. These facilities occupy approximately 10 acres and are used for educational and research purposes. The Whitney Lab has broken ground on a new Center for Marine Studies and has plans for a Center for Marine Animal Health.
The marina facility is located in the northwestern part of the Town adjacent to the ICW. It is 3.4 acres in size. The marina has been closed due to the deteriorating facilities. There is a plan to redevelop the Marina as a "Clean Marina."
A smaller (0.74 acre) parcel is located adjacent to the Preserve on the west side of A1A and is the location of the Guana Tolomato Matanzas National Estuarine Research Reserve (GTMNERR) Administrative Offices, classroom, lab, and research facilities.
Besides the beach, undeveloped urban lands outside the Preserve consist primarily of an approximately 47-acre, privately-owned parcel located in the center of the Town west of A1A. It is surrounded on three sides by already-developed areas within the Town. It includes approximately 10.3 acres of the Temperate Hardwood Hammock.
Adjacent Lands
The Flagler County/St. Johns County line passes
through the northern tip of the Town so that the Town is primarily located in Flagler County. Flagler County is a fast-growing county having five incorporated municipalities.
Land to the north of the Town, located in St. Johns County, consists of undeveloped coastal scrub and dune, saltwater marshes, and single-family houses along the barrier dune and in the vicinity of Summer Haven, a small unincorporated community located on the south side of the Matanzas Inlet.
To the south, in Flagler County, there are large areas of coastal scrub and temperate hammock. A residential development called Matanzas Shores is being constructed. This development was permitted by Flagler County after Development of Regional Impact (DRI) review by the RPC. Immediately to the south of this development is the Washington Oaks Gardens State Park.
To the west of the Town are saltwater marshes associated with Pellicer Creek, which is designated an Outstanding Florida Water (OFW), and the Matanzas River, which is part of the ICW. Pine flatwoods and temperate hammock are on the mainland shore. The Princes Place Preserve, Faver Dykes State Park, and St. Johns River Water Management District lands along Pellicer Creek serve as a 19,000-acre buffer between the ICW and the U.S. 1/I-95 corridor to the
west. Two islands located in the Matanzas River estuary have been purchased through the FCT program and are owned by the Town. The southern island is located directly across from the Marineland marina on the west bank of the ICW and on the Flagler/St. Johns County boundary. The north island is on the west side of the ICW just south of the Matanzas Inlet in St.
Johns County. The Florida Park Service will manage the islands. Although owned by the Town, these islands have not been annexed into the Town boundaries. It is the intent of the Town to annex these islands and incorporate them into long-term research, education and protection.
Density8
On several fronts, Petitioners take issue with the density of development allowed by the Plan Amendments. They point to the designation of the Coastal High Hazard Area (CHHA), as well as data and analysis concerning erosion, topography (ground elevations), hurricane frequency and severity (or intensity), hurricane evacuation and shelter concerns, and effects on the sensitive environment of the Town and vicinity.
CHHA
In accordance with the law at the time, the Town's 1992/2005 Plan designated the CHHA to be seaward of the Town's coastal dune. In compliance with Rule 9J-5.012(3)(b)6., which
required (and still requires) coastal management elements of plans to contain one or more specific objectives which "[d]irect population concentrations away from known or predicted coastal high-hazard areas," the Town's 1992/2005 Plan included Coastal/Conservation Element (C/CE) Objective E.1.6, which provided:
Marineland shall direct population concentrations away from known or predicted high-hazard areas and shall ensure that building and development activities outside high-hazard areas are carried out in a manner which minimizes the danger to life and property from hurricanes. Development within Coastal High-Hazard Areas shall be restricted and public funding for facilities with[in] Coastal High-Hazard Areas shall be curtailed. Marineland shall provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding.
In addition, the Town's 1992/2005 Plan did not allow residential (or any other) development in the designated CHHA.
In 1993 the Florida Legislature amended the definition of the CHHA mean the Category 1 hurricane evacuation zone. See Section 163.3178(2)(h), Fla. Stat. See also Rule 9J-5.003(17) (defining the CHHA to mean the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study). Rule 9J-5.002(8) requires a local government to "address" rule changes in the
next cycle of amendments. Since the entire Town is in the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study, the Plan Amendments designate the entire Town as the CHHA. The Plan Amendments allow residential development west of the ocean dune in what is now the CHHA. The Plan Amendments also replace Objective
E.1.6 with a new C/CE Objective E.1.6, Hazard Mitigation, which requires the Town to "ensure that building and development activities areas [sic] are carried out in a manner which minimizes the danger to life and property" and "provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding." A series of policies follow the new objective.
The question under these circumstances is whether the Plan Amendments adequately address the change in CHHA definition and comply with Rule 9J-5.012(3)(b)6. As the following findings explain, it is found that they do.
Petitioners contend that they do not and that the Town was required to keep the 1992/2005 C/CE Objective E.1.6, which arguably would prohibit any residential development in the Town. This also would be the result if Rule 9J- 5.012(3)(b)6. were construed to require the Town to direct all
population away from the CHHA. At least some Petitioners candidly would prefer that result, and Petitioners make a seemingly half-hearted initial argument that allowing any residential development in the Town (i.e., in the CHHA) would be inappropriate and not "in compliance." But it is clear that such a result is not mandated by the statute or rules.
To the contrary, DCA interprets the statutes and rules as not even requiring a re-evaluation or "down-planning" of land uses (in particular, a reduction in residential densities) allowed under an existing comprehensive plan when a local government "addresses" the change in definition of the CHHA by increasing its size. DCA has not required such a re- evaluation anywhere in the State. Rather, DCA interprets the statutes and rules to prohibit the local government from increasing density in the CHHA above the density authorized by its existing comprehensive plan.
In this case, the Town not only has designated the new CHHA but also has conducted a re-evaluation and revised its comprehensive plan. Under the rather unusual circumstances here, where the CHHA covers the entire Town, changing residential densities in various parts of the Town is not significant in determining whether population concentrations are directed away from the CHHA. Rather, what
is important is the total residential development allowed in the Town as a whole.
The Town contends, along with DCA and Centex, that the Plan Amendments reduce residential density in the Town. Petitioners, on the other hand, contend first of all that the density allowed by the Plan Amendments cannot be compared to the 1992/2005 Plan because the existing plan did not establish residential density standards, as required by Section 163.3177(6)(a), Florida Statutes ("[e]ach future land use category must be defined in terms of uses included, and must include standards to be followed in the control and distribution of population densities"). Instead, Petitioners contend that the 1992/2005 Plan was written in terms of "vague and standardless" design criteria and a policy direction for the Town to adopt LDRs consistent with the design criteria. Primarily for that reason, Petitioners contended that the density allowed by the Plan Amendments had to be compared to the residential density established by Ordinance 97-3 to determine whether the Plan Amendments increased residential density.
Regardless of the way it was written, the 1992/2005
Plan was found to be "in compliance." In addition, while the policies in the Future Land Use Element (FLUE) of the 1992/2005 Plan were written in terms of average gross acre lot
sizes, maximum lot coverage, and maximum floor area ratios characteristic of design criteria, it is nonetheless possible to calculate (albeit not without difficulty and with room for minor differences in results depending on the approach taken and assumptions made) the residential density allowed under the 1992/2005 Plan. The adopted FLUM depicted the various residential land use categories, as required by Section 163.3177(6)(a)("[t]he proposed distribution, location, and extent of the various categories of land use shall be shown on a land use map or map series"), and a summary of the total allowable residential land uses was included in data and analysis that accompanied the 1992/2005 Plan,9 making it possible to calculate residential density. Contrary to Petitioners' argument, it is not necessary to use Ordinance
97-3 to determine the residential density allowed under the 1992/2005 Plan, and there is no other plausible reason, or any precedent, for using land development regulations in that manner.
As represented in the data and analysis summary for purposes of calculating the land requirements for housing, the 1992/2005 Plan allowed a maximum of 427 residential dwelling units on 37.7 acres, including apartments above retail uses, which are not depicted on the FLUM but are allowed under Housing Element (HE) Policy C.1.1.2 to provide affordable
housing. This maximum of 427 assumed 98 apartments above retail uses although more arguably would be allowed under the 1992/2005 Plan. In addition, the 1992/2005 Plan's HE Policy
C.1.1.1 allowed "out-buildings" as "ancillary structures to the rear of lots containing single family dwellings." Like the apartments over retail, these dwelling units are not depicted on the FLUM but are allowed as of right and theoretically could result in 176 additional dwelling units on a total of 37.6 acres.
To arrive at the residential density allowed under the 1992/2005 Plan, DCA's expert added 12 of the approximately 12-20 dwelling units not shown in the summary but mentioned in the data and analysis of the 1992/2005 Plan as being either existing or allowed on the Whitney Lab's 5.4 acres, bringing the total theoretical maximum under the 1992/2005 Plan to 615 residential units on 43 of the Town's 151 acres, at various densities ranging from 2.2 units per acre at the Whitney Lab to 28.8 units per acre for apartments above retail uses, for an average residential density of 14.3 units per acre.10
Centex's expert took a different tack. First, for the apartments over retail uses, he assumed two units per retail use, for a total of 198 units (while also pointing out that there was no cap on these units in the 1992/2005 Plan). Second, he did not include any units for the Whitney Lab
because they were not grounded in Plan policies. Using this approach, he arrived at a total of 704 residential units allowed under the 1992/2005 Plan. While he maintained the validity of that calculation, he pointed out that eliminating the units (both residential units and associated "out- buildings") allowed on land now included in the River-to-Sea Preserve would lower the total to 611 units.
The Town's expert did not count apartments above retail uses or the units at the Whitney Lab and arrived at a total of approximately 421-425 dwelling units allowed under the 1992/2005 Plan. When he eliminated the units (residential units with associated "out-buildings") allowed on land now included in the River-to-Sea Preserve, he decreased his total to 275 units. The reason for the differences in his calculation was not clear from the record.
Turning to the Plan Amendments, although more typical residential density standards are used, the experts still disagree on exactly what residential density the Plan Amendments allow and achieve. Most development under the Plan Amendments will occur in the Sustainable Mixed Use (SMU) future land use category, which allows a maximum of 241 residential units, a maximum of 50,000 square feet of commercial uses, and accessory residential units for affordable housing. Centex's expert determined that, under
the Plan Amendments, the maximum theoretical number of dwelling units that could be developed in the Town, including the SMU category, is 565 units.
It is not reasonable to conclude that 565 dwelling units would actually be developed, because this number includes 241 affordable accessory units, one for each residential unit. However, the Town concluded there is only a need for 39 such units. Centex's expert found that 13 of the
39 affordable housing units needed in the Town will be provided in FLUM categories other than SMU--namely, Institution Research (the Whitney Lab) and Conservation. It is more reasonable to expect that only the remaining 26 accessory units needed to address affordable housing will be developed in the SMU category to meet the 39-unit affordable housing need, instead of 241, and that 350 units actually will be built under the Plan Amendments.
In his analysis, DCA's expert did not count any affordable housing units in the SMU category in reaching the conclusion that a 315 residential units are allowed under the Plan Amendments. Adding the theoretical maximum of 241, his total maximum theoretical number of residential units would be
553. The record is not clear as to why his numbers differ somewhat from the Centex expert's.
The Town's expert somehow arrived at the conclusion
that the Plan Amendments allow a total of 279 residential units. Like the DCA expert, he apparently did not count affordable housing units in the SMU category. The reason for other differences in his calculation are not clear from the record. It may be that he did not count residential units in the Tourist/Commercial category, while the others counted 35 units because there is a possibility that 35 condominium units could be developed there instead of 70 hotel rooms.
Differences may also involve how he assessed and counted the possibility for residential units in the Institutional Research and Conservation categories.
Despite these computational differences, it is clear that the Plan Amendments allow fewer residential units in the Town than the 1992/2005 Plan did, even assuming no residential development under the 1992/2005 Plan in what became the River- to-Sea Preserve. The density allowed under the Plan Amendments is comparable to densities authorized by comprehensive plans north and south of the Town, as well as the actual development that has occurred and is occurring in those areas.
Since the entire Town is within the new CHHA, the Plan Amendments can be said to result in a reduction in population concentration within the CHHA by comparison to the 1992/2005 Plan. This also is reflected in the population
projections on which the two plans were based. The 1992/2005 Plan was based on a projected total 2005 population of 1,551 people, including 900 permanent and 651 seasonal. The Plan Amendments are based on a projected 2015 population of 630, including 386 permanent residents and 244 seasonal residents and university students living in dormitories at the Whitney Lab.
While reluctantly conceding that some residential growth in the Town (i.e., in the CHHA) is appropriate, Petitioners contend that growth must be limited to what is allowed under Ordinance 97-3 because any more growth than that would increase residential density in the CHHA. They argue that Ordinance 97-3 should be the benchmark because the 1992/2005 Plan did not establish residential density but instead relied on Ordinance 97-3 to do so. However, as reflected above, this argument was not supported by the evidence.
Under the unusual circumstances of this case, while the Plan Amendments do not include an objective that parrots the words in Rule 9J-5.012(3)(b)6.--"[d]irect population concentrations away from known or predicted coastal high- hazard areas"--they do have goals, objectives, and policies which do so, as well adequately address the new CHHA definition.
Data and Analysis
Under the proposed findings in the section of their PRO entitled "Data and Analysis," Petitioners argue that there was a: "Failure to prove need for proposed density." The basis for the argument appears to be that: "[n]o professional methodology was utilized"; that the Town's population estimate was based on the "desires of the stakeholders," i.e., the "property owner investors"; and that the "desire of the stakeholders was for 'approximately 241 dwelling units,' not the at least 565 dwelling units authorized by the Amendments." Petitioners' PRO, at ¶61. But Petitioners did not prove that no professional methodology was used or that the population estimate was based solely on the "desires of the stakeholders." In addition, while the Plan Amendments state that the visioning effort undertaken by the Town for developing the Town's Master Plan under Florida's Remarkable Coastal Place program identified "approximately 241 dwelling units . . . as a target for meeting the permanent residential population of the Town," it also stated that "approximately
315 dwelling units were identified as a target for meeting the
sustainability goal of the Town." Joint Exhibit 2, pp. A-14, C-11. Finally, there is no requirement that data and analysis "prove need for proposed density," but only that they support allocations of land for various uses. See § 163.3177(6)(a),
Fla. Stat. ("future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth").
Accommodating need for affordable housing on the same land allocated for other residential and commercial development does not run afoul of this data and analysis requirement. See Fla. Admin. Code R. 9J-5.006(2)(c). No witness for Petitioners opined that the population projection for the Plan Amendments was not supported by data and analysis. To the contrary, several witnesses for the other parties opined that the data and analyses supporting the Plan Amendments were surprisingly comprehensive for a local government the size of the Town and were more than adequate.
Land Use Suitability
Petitioners' PRO contends: "The data and analysis concerning Town erosion, the low elevation of the Town, increased hurricane frequency and severity, inadequacy of hurricane evacuation time and shelter capacity, the adverse impacts of the land use designations on shellfish beds, estuarine nursery areas, the Tropical Hardwood Hammock, the designation of domestic waste water treatment and discharge facilities in the River to Sea Preserve, and water pollution resulting from foreseeable flooding establishes that the
density of the Amendments is unsuitable for the Town land." Petitioners' PRO, ¶63.
Erosion and Elevation
It is clear that the Town of Marineland, due to its location and low elevation (generally 5-6 feet NGVD west of A1A), has been, is, and will continue to be vulnerable to beach erosion and flood damage from a major hurricane.
Several hundred years ago, there was a navigable tidal pass north of the Town. The pass closed naturally through sand and sediment accretion but in recent years the area has been suffering significant erosion, resulting in State Road A1A having to be rerouted and access to homes along the old A1A being severely limited. In 1999, when Hurricane Floyd was
100-150 miles east of the Town in the Atlantic Ocean, significant erosion occurred within the Town, including the waters and sand of the Atlantic Ocean overtopping A1A in the north end of the Town, along with flooding the Town. As a result, the Town was a declared a disaster zone, and FEMA awarded two separate redevelopment grants. The Town's shoreline has been critically eroded, but is stable at this time.
Notwithstanding these characteristics of the Town, which contribute to its designation as a CHHA, and as previously discussed, the evidence is clear that the Town is
not considered unsuitable for development. To the contrary, the development allowed by the Plan Amendments is considered acceptable.
Petitioners also cite evidence that sea level is expected by some to rise approximately 20 inches in the next
100 years. But no qualified witness opined that, for planning purposes, the Town should be considered unsuitable for development for that reason.
Hurricane Frequency and Intensity
Petitioners also contend that the Town is unsuitable for development in light of data and analysis concerning hurricane frequency and intensity. Indeed, there is persuasive evidence that hurricane frequency and intensity is cyclical and that in about 1995 a period of heightened hurricane frequency and intensity that usually lasts 10-20 years probably began.
The evidence was clear that DCA does not consider the frequency and intensity of hurricanes to be relevant data and analysis in evaluating whether comprehensive plan development density and intensity are "in compliance." Rather, this is considered to be a matter to be addressed by the Legislature. So far, there has been no legislation to either further enlarge the CHHA or further restrict development in the CHHA.11
Hurricane Evacuation and Shelter Study
Petitioners allege that the Town did not undertake adequate hurricane evacuation planning in connection with the Plan Amendments. Specifically, their PRO cites Section 163.3178(2)(d), Florida Statutes, which requires a comprehensive plan's coastal management element to include: "A component which outlines principles for hazard mitigation and protection of human life against the effects of natural disaster, including population evacuation, which take into
consideration the capability to safely evacuate the density of coastal population proposed in the future land use plan element in the event of an impending natural disaster." They also cite Rule 9J-5.012(2), which addresses the requirement that the coastal element be based on the following data and analysis, among others:
(e) The following natural disaster planning concerns shall be inventoried or analyzed:
1. Hurricane evacuation planning based on the hurricane evacuation plan contained in the local peacetime emergency plan shall be analyzed and shall consider the hurricane vulnerability zone, the number of persons requiring evacuation, the number of persons requiring public hurricane shelter, the number of hurricane shelter spaces available, evacuation routes, transportation and hazard constraints on the evacuation routes, and evacuation times. The projected impact of the anticipated population density proposed in the future land use element and any special needs of the elderly, handicapped,
hospitalized, or other special needs of the existing and anticipated populations on the above items shall be estimated. The analysis shall also consider measures that the local government could adopt to maintain or reduce hurricane evacuation times.
They point out that Rule 9J-5.003(57) defines Hurricane Vulnerability Zone (HVZ) as "the areas delineated by the regional or local hurricane evacuation plan as requiring evacuation" and that it also requires the HVZ to "include areas requiring evacuation in the event of a 100-year storm or Category 3 storm event." Finally, they cite Rule 9J- 5.012(3)(b)7., which requires one or more specific Coastal Element objectives which: “Maintain or reduce hurricane evacuation times.” The evidence was that these planning requirements were met.
There are no mandatory state, regional, or local evacuation clearance times. The 1992/2005 Plan included C/CE Objective E.1.5., which provided: "The time period required to complete the evacuation of people from flooding of vulnerable coastal areas prior to the arrival of sustained gale force winds shall be maintained at less than 12 hours." The Plan Amendments replaced that objective with C/CE E.1.5., which now provides: "Evacuation clearance time should be maintained or reduced to less than 12 hours." This complies with Rule 9J-5.012(3)(b)7.
The Plan Amendments were based on appropriate data and analysis. Because the entire Town is in the CHHA, the Town population must evacuate in a Category 1 and all higher storm categories. Evacuation routes for the Town are S.R. A1A north to S.R. 206 in St. Johns County, and S.R. A1A south to Palm Coast Parkway in Flagler County. The best and most current evidence, based on a 2005 update to the RPC's 1998 Regional Hurricane Evacuation Study, indicates that evacuation clearance times for St. Johns County are estimated to be 11 hours for Category 1 hurricanes, 14 for Category 2 hurricanes,
16 hours for Category 3 hurricanes, and 16.75 hours for Category 4 through 5 hurricanes; evacuation clearance times for Flagler County are estimated to be 7.75 hours for Category
1 and 2 hurricanes and 12 hours for Category 3 through 5 hurricanes. The Flagler clearance times are lower than those estimated in a 1998 version of the study, even though based on a higher population, primarily because the widening of the Palm Coast Parkway to four-lanes has been completed. The evidence does not demonstrate that the evacuation
clearance times in St. Johns County increased under the 2005 Study.
Clearance times are based on the worst bottleneck in a county, where traffic is metered to derive the actual clearance times. Evacuation of Town residents under the Plan
Amendments will not impact the bottlenecks in either St. Johns County or Flagler County. For that reason, evacuation of Town population would be expected to be take less time than the clearance times calculated for those counties in the RPC's 2005 study; conversely, evacuation of Town residents under the Plan Amendments will have no effect on the overall clearance times in either St. Johns County or Flagler County.
Assuming a maximum additional population (resulting from the addition of 829 dwelling units) under the Plan Amendments, 652 cars would be added to an evacuation during high tourist occupancy season (which includes the summer tourist season, which generally corresponds to hurricane season). This would increase traffic during the worst theoretical hour of the Town's evacuation (i.e., during which
30 percent of the Town's traffic would try to enter the evacuation road network) by 8.7 percent heading north from the Town on A1A and by 13 percent heading south of the Town on A1A.
Based on a comparison of maximum theoretical
densities under the 1992/2005 Plan and under the Plan Amendments, the number of evacuating vehicles added to the road network is reduced under the Plan Amendments. By comparison, assuming a maximum additional population (resulting from the addition of 565 dwelling units) under the
1992/2005 Plan, 922 cars would be added to an evacuation during high tourist occupancy season. This would increase traffic during the worst theoretical hour of the Town's evacuation by 12.3 percent heading north from the Town on A1A and by 18.4 percent heading south of the Town on A1A.
Likewise, based on a comparison of maximum densities under the 1992/2005 Plan and the Plan Amendments, the Plan Amendments result in a reduced demand for shelter space.
Obviously, since the entire Town is in the CHHA and must evacuate in a Category 1 and all higher storm categories, there is no requirement for the Town itself to provide hurricane shelter. Similar to most Florida counties, St. Johns and Flagler Counties have deficits in shelter space that are expected to increase as the population increases. According to DCA's Division of Emergency Management (DEM), in 2004 Flagler County had hurricane shelter spaces for 4,267 persons and a deficiency of 2,401 shelter spaces. This deficiency is expected to almost double (be 4,020) by 2008. According to DCA's DEM, in 2004 St. Johns County had hurricane shelter capacity for 7,320 persons, and a hurricane shelter demand of 9,829 people, resulting in a deficiency of 2,509 spaces. In 2009, the St. Johns County shelter demand is projected to be 11,564, “leaving an anticipated shelter deficit of 4,244.” However, the evidence was not clear that
the shelters to which Town residents would be assigned are either over capacity or under capacity. In addition, it was not clear that future development would not include the construction of facilities that may serve as shelters.
Finally, there was no clear evidence why these anticipated shelter deficits should restrict development in either county, or in the Town, so as to make the Plan Amendments not "in compliance."
Natural Resources
Petitioners contend that the Plan Amendments are not "in compliance" because of effects on various natural resources in the Town and vicinity, including shellfish harvesting areas, important estuarine nursery for juvenile fish and invertebrates, and the Town's high-quality oak hammock area (also referred to as a maritime hammock, a coastal temperate hammock, or a tropical hardwood hammock.) Petitioners' main argument regarding adverse effects on shellfish harvesting and nursery areas was that flooding during hurricane events will cause household chemicals and other pollutants stored inappropriately at ground level to be released into the environment, probably at a time when juvenile fish are present in the estuarine nursery areas. But there also was persuasive evidence that chemicals released during these kinds of flood events would be substantially
diluted by the massive volume of water associated with them, which would greatly reduces any deleterious effects on nursery and shellfish areas.
Through C/CE Policies E.1.3.4 and E.1.3.5 in the Plan Amendments, the Town has chosen to impose OFW standards that substantially exceed those that would otherwise be imposed by the St. Johns River Water Management District. OFW standards prohibit degradation of water below ambient conditions and typically require the design of stormwater systems that provide 1.5 times the level of treatment that otherwise would be provided for stormwater.
There was evidence that shellfish harvesting has declined in the waters of the GTMNEER to the north of the Town over the recent past as the land near these waters has been developed. The evidence was not comprehensive as to the reason(s) for the decline, but poorer water quality generally is thought to be the primary cause. Some shellfish harvesting areas still are productive, including some near the Town where Mr. Cubbedge has an oyster and clam lease.
Petitioners presented no testimony related to the temperate hardwood hammock. Centex's expert in environmental analysis observed that portions of the hammock areas have been altered or disturbed and that the higher-quality areas have been placed in the River-to-Sea Preserve where they are
protected from development. Much of the natural vegetative communities in the Town are within the Conservation future land use category and not subject to development.
To protect 10.3 acres of oak hammock located on land that is subject to development, the Plan Amendments impose a Maritime Hammock Overlay. In addition to otherwise applicable density and intensity standards, development within the Overlay is subject to numerous restrictions on adverse impacts on natural vegetation. Amendment FLUE Policies A.1.8.3. and
A.1.8.4. allow only 50 percent of single-family and multi- family parcels to be cleared of trees, understory, and groundcover, and only 25 percent of the tree canopy to be removed.
Petitioners also argue that the designation of the "Public Facilities" future land use category in the River-to- Sea Preserve in Amendment Policy A.1.4.2 is unsupported by data and analysis and "fairs [sic] to show the extend [sic] of the category as required by Section 163.3177(6)(a), Fla. Stat., and it does not estimate the gross acreage of the category as required by Rule 9J-5.006(2)(c)." Actually, the statute cited requires the FLUE to designate the "extent of the uses of land," and the rule requires an "analysis of the amount of land needed to accommodate the projected population, including: . . . 2. The estimated gross acreage needed by
category . . . ." There was no testimony or other adequate evidence to support these arguments, and it was not proven that the Plan Amendments are not "in compliance" for any of these reasons.
Conclusion
It was not proven that data and analysis concerning the above matters establish that the density of the Plan Amendments is unsuitable for the Town land.
Meaningful and Predictable Standards
Similar to the Amended Petition and Petitioners' Statement of Position in the Prehearing Stipulation, Petitioners' PRO lists numerous objectives and policies in the Plan Amendments and contends that they are not "in compliance" because they do not provide meaningful and predictable standards. One expert called by Petitioners (Ms. Owen) testified in general that the Plan Amendments contain objectives and policies "which do not contain meaningful and predictable standards" or "that are not measurable or provide any standards or specificity." (T. 359). She also initially testified that the Plan Amendments (at her request) incorporated into data and analysis OFW water quality standards for discharges into the ICW but that "their goals, objectives and policies, as drafted, do not provide specific enough standards to be able to measure that"; later, she
conceded that C/CE Policy E.3.5 incorporated OFW water quality standards. Another expert for Petitioners (Mr. Johnson) testified, "I think there's not enough detail in these policies and standards by which somebody could measurably allow growth to occur and measurably predict that it's not going to have an effect, a negative effect, on the environment." Otherwise, Petitioners put on no expert testimony to explain why the objectives and policies in the Plan Amendments do not provide meaningful or predictable standards, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason.
Meanwhile, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." Another expert for Centex (Dr. Dennis) testified specifically that incorporation of the OFW standards in the C/CE and other goals, objectives, and policies were adequate to protect the waters of the ICW and its natural resources and the River-to- Sea Preserve even with the development allowed by the Plan Amendments.
Rule 9J-5.005(6) provides in pertinent part:
"Goals, objectives and policies shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed
land development and use regulations. This chapter does not mandate the creation, limitation, or elimination of regulatory authority for other agencies nor does it authorize the adoption or require the repeal of any rules, criteria, or standards of any local, regional, or state agency."
Rule 9J-5.003 sets out definitions, including:
(52) "Goal" means the long-term end toward which programs or activities are ultimately directed.
(82) "Objective" means a specific, measurable, intermediate end that is achievable and marks progress toward a goal.
(90) "Policy" means the way in which programs and activities are conducted to achieve an identified goal.
Properly understood, these Rules require that an objective's "intermediate end" be specific and measurable in the sense that it can be determined when the "intermediate end" is reached. They do not mean that objectives must eliminate all possibility ambiguity or be amenable to quantitative measurement. They only require that objectives provide "meaningful guidance" and be enforceable in that sense.
All of the objectives and policies listed by Petitioners have been reviewed. The evidence does not prove beyond fair debate that any of the listed objectives and
policies are inconsistent with the cited Rule provisions, properly understood.
Petitioners complain that several of the listed objectives and policies require the adoption of LDRs without including meaningful and predictable standards. In some cases, the objectives and policies themselves provide meaningful and predictable standards. But it is not necessary for comprehensive standards to be included in each such objective or policy. Rather, when required, meaningful and predictable standards to guide the LDR adoption process can be placed elsewhere in the comprehensive plan, as is often the case with the Plan Amendments. (In addition, not all plan directions to adopt LDRs are required by statutory and rule mandatory criteria, and it is possible that all of them may not be required to include meaningful and predictable standards if superfluous.)
As they did elsewhere in their PRO, Petitioners contend that FLUE Policy A.1.4.2 does not "state what is the areal extent of the 'Public Facilities' land use category as required by Section 163.3177(6)(a), Fla. Stat. or estimate the gross acreage of the 'Public Facilities' land use category as required by Rule 9J-5.006(2)(c)." They also characterize the alleged failing as a lack of meaningful and predictable standards. But as previously mentioned, the Plan Amendments
are not inconsistent with that statute and rule. See Finding 73, supra.
Petitioners also argue that a listed objective and several listed policies fail to provide meaningful and predictable standards because they do not contain a percentage distribution of mixed uses.12 Actually, these are two different issues. As already indicated, it was not proven beyond fair debate that the objectives and policies fail to provide meaningful and predictable standards.
As for the separate issue of percentage distribution of mixed uses, Rule 9J-5.006(4)(c) provides:
Mixed use categories of land use are encouraged. If used, policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density or intensity of each use.
(Emphasis added.)
Petitioners put on no expert testimony to explain why the objective and policies in the Plan Amendments do not meet the requirements of this Rule, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, as already mentioned, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr.
Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance."
On the evidence presented, it was not proven beyond fair debate that the Plan Amendments do not contain policies with "[an]other objective measurement" of the distribution among the mix of uses in the SMU, General Commercial, and Tourist Commercial land use categories established in FLUE Policy A.1.4.2.
H. Petitioners' Other Issues
The Amended Petition and Prehearing Stipulation raised other issues that were not included in Petitioners' PRO. Some of these were addressed in the parts of Centex's PRO, which the Town and DCA joined, including financial feasibility, planning timeframes, and deletion of a policy requiring habitats of listed species to be designated Conservation. To the extent that these other issues have not been abandoned by Petitioners, it is found that they were not proven.
Petitioners' Standing
All of the Petitioners submitted oral or written comments, recommendations, or objections to the Town during the period of time beginning with the transmittal hearing for the Plan Amendments on March 31, 2005, and ending with their adoption on August 18, 2006.
None of the Petitioners own property or reside in
the Town or own real property abutting real property in the Town.
The Hamilton Brothers
Brothers George William (Bill) Hamilton, III, and Patrick S. Hamilton live in Crescent Beach, which is four to five miles north of the Town in St. Johns County. Together (along with their wives), they own and operate Homecomers, Inc., which does business as Southern Realty of St. Augustine and Crescent Beach (Southern Realty), and as Southern Horticulture, which is located in Crescent Beach or St. Augustine (the evidence was not clear which). Patrick operates the real estate brokerage, which has offices in St. Augustine and in Crescent Beach, and Bill operates the retail garden and landscaping business. The brothers also own part of Coastal Outdoor Center, which is located in Crescent Beach at S.R. 206 and features kayak tours of the Matanzas River, mostly south to Pellicer Creek. The Hamilton family also has oyster and clam leases in St. Johns County.
It appears that the vast majority of the brothers'
business activities are conducted in St. Johns County north of the Town. However, over the years, some limited business has been conducted in the Town. In 1993 Patrick Hamilton twice brokered the sale of land from Marineland, Inc., one parcel to an private individual and the other to the Whitney Lab. In
1995 he procured a contract for the sale of Marineland, Inc. (and, with it, essentially the entire Town) for a fish farm operation for approximately $10 million; when the contract was breached, Southern Realty got part of the forfeited $100,000 binder. In 1998 Hamilton was authorized by MOR to sell its holdings in the Town for a ten percent commission. Hamilton was successful in efforts to arrange for it to be purchased by FCT and the Trust for Public Lands (TPL) through the bankruptcy court in Jacksonville, and some of the land was immediately resold at a profit to Mr. Jacoby. When Hamilton pursued payment of Southern Realty's brokerage commission through the bankruptcy court, he learned that TPL had indemnified MOR for the brokerage commission. At that point, Southern agreed to accept an $18,000 fee from TPL and drop its bankruptcy claim for ten percent on the overall purchase. In 2002, Hamilton paid for and prepared grant applications for the Town's purchase of two islands that were outside the Town's municipal boundaries but which the Town intends to annex. In September 2004 he wrote an offer on behalf of a trustee of the Whitney Lab to purchase a small parcel of land TPL still owned in the Town and donate it to the Lab.
However, no contract was reached, and Southern Realty received
no commission. In 2005 Phil Cubbedge asked Hamilton to represent him in the sale of his oyster and clam lease to
Centex but then backed out when Centex proposed to deal directly with Cubbedge without Southern Realty's involvement.
Southern Horticulture used to do business with the Marineland Attraction but has not done any business in the Town in nine years, since the Attraction went into receivership and did not pay a Southern Horticulture bill in full.
The Town never has required the Hamiltons or their businesses to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 Southern Realty applied and paid for and obtained an occupational license to "engage in the business of real estate." This was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County.
On several occasions over the years, the Hamilton brothers have engaged in various civic activities pertaining to the Town. Most of these activities have been Patrick's. These have included: participation on the management advisory group for the GTMNERR and efforts in the early to mid-1990s to have its Administrative Office established in the Town; efforts in 2000 or 2001 related to the designation of A1A as a scenic highway in St. Johns County, with a segment being in
the Town; subsequent work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County; advocacy related to the St. Johns County Comprehensive Plan; service on the Board of Trustees of the Whitney Lab; and financial contributions to and fund-raising for the Whitney Lab. The brothers do these things out of a sense of civic duty and for the good of the community and their vision for it. However, they also believe these activities provide a benefit for their business, particularly the real estate and outfitting businesses.
It is found, based primarily on the activities of Southern Realty, that the Hamilton brothers own or operate a business within the Town.
Florida Wildlife Federation
FWF is a not-for-profit Florida corporation with approximately 50,000 members and supporters. No FWF members reside or own property in the Town, and FWF does not have an office in the Town. One member (Mr. Cubbedge) has an oyster and clam lease in the Town. Cubbedge, the Hamilton brothers, and Dr. Michael Greenberg, who works and has his office at the Whitney Lab in the Town, are the only members who have a connection to the Town, according to the evidence.
In April 2004, FWF established a regional office in St. Johns County outside the Town for the primary purpose of
reviewing comprehensive plan amendments, focusing on natural resource protection.
FWF monitors growth management and habitat protection during the development stages of the Town, focusing on the draft of the goals, objectives and policies for the comprehensive plan. In furtherance of this effort, FWF’s planning advocate (Ms. Owen) has attended and participated in meetings of the Remarkable Coastal Place work group stakeholder meetings, where they reviewed drafts of comprehensive plan amendments; has talked with elected officials to educate them on FWF (and FOM) concerns; and has attended meetings of and made presentations to the South Anastasia Community Association, a civic organization that holds its meetings in the Town.
Through the Post Office and its website, FWF publishes a newsletter with information about FWF’s activities in the state, including fundraising. No evidence was presented that the newsletter is distributed in the Town.
FWF’s regional office held a fundraiser in St.
Augustine in February 2006 to raise money to pay attorney’s fees and expert witness fees for this proceeding.
The Town never has required FWF to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 FWF applied and paid for and
obtained an occupational license "to engage in the business of monitoring growth management and habitat protection." As with Southern Realty, this was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County.
Based on the evidence, it is found that FWF owns or operates a business within the Town.
Friends of Matanzas
FOM is a not-for-profit Florida corporation established in 2001 to preserve and protect the estuary and its watershed, and to maintain the rural beach community, particularly on South Anastasia Island and in southern St. Johns County to Marineland.
FOM has 34-44 members. No FOM members reside in the Town, but at least two of them--its current president,
Dr. Greenberg, and Maureen Welsh--work at the Whitney Lab. The Hamilton brothers also are members.
FOM itself does not have an office in the Town.
However, Dr. Greenberg is its president, and he may keep some FOM records and documents in his office at the Whitney Lab.
There was no evidence that FOM ever has had a Town occupational license, or that the Town ever has required it to have one.
In part (if not primarily) through the activities of the Hamilton brothers, FOM has been involved in: efforts in the mid-1990s to have the Administrative Office of GTMNERR established in the Town; efforts, including production of a video in 2000 or 2001, related to the designation of A1A in St. Johns County, including within the Town, as a scenic highway; and work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County, including within the Town. There also was evidence that FOM holds annual meetings in the Town.
Based on the evidence, it is found that FOM does not own or operate a business within the Town.
CONCLUSIONS OF LAW
Standard of Review/Standard of Proof
Except for certain "amendments directly related to proposed small scale development activities" and described in Section 163.3187(1)(c), DCA reviews all local government comprehensive plans and plan amendments for "compliance"-- i.e., for consistency "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 and with part III of chapter 369, where applicable."
§ 163.3184(1)(b), Fla. Stat.
When DCA determines that a local government's plan or plan amendment is "in compliance," administrative proceedings under Section 163.3184(9) may take place. Most administrative proceedings initiated after preliminary agency review and notice of the agency's intent to take final action are de novo proceedings under Sections 120.569 and 120.57(1) designed to "formulate final agency action, not to review action taken earlier and preliminarily." McDonald v Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977). But the Legislature has chosen to treat administrative review of comprehensive plan and plan amendment cases differently. In proceedings under Section 163.3184(9), a different standard of review is established: "In this proceeding, the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable."
§ 163.3184(9)(a), Fla. Stat.
The phrase “fairly debatable” is not defined in Chapter 163 or in Rule Chapter 9J-5. The Supreme Court of Florida has opined, however, that the fairly debatable
standard under Chapter 163 is the same as the common law “fairly debatable” standard applicable to decisions of local governments acting in a legislative capacity. In Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997), the Court stated that the fairly debatable standard is deferential and requires “approval of a planning action if reasonable persons could differ as to its propriety.” Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court stated further:
[A]n ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.
Id.
Petitioners make several arguments why this
standard of review/burden of proof should not apply in this case. Those arguments are rejected.
Only issues plead or tried by consent may be considered. Cf. §§ 120.569, 120.57(1), Fla. Stat.; Fla. Admin. Code R. 28-106.201(2); Heartland Environmental Council v. Department of Community Affairs, DOAH Case No. 94-2095GM, 1996 Fla. Div. Adm. Hear. LEXIS 3152, at *49 (DOAH October 15, 1996; DCA November 25, 1996). In this case, the allegations in the Amended Petition were further amended without objection in the Prehearing Stipulation, and those allegations are
considered to have been heard by consent to the extent that evidence was presented on them.13 No other issues may be considered.
Substantive Compliance Criteria
The pertinent substantive compliance criteria have been cited in the Findings.
As found, considering all the pertinent compliance criteria, Petitioners did not prove beyond fair debate that the Plan Amendments are not "in compliance."
Petitioners contend that finding the Plan Amendments "in compliance" would conflict with Village of Key Biscayne v. Department of Community Affairs, 696 So. 2d 495 (Fla. 3d DCA 1997). In that case, DCA found a plan amendment to be "in compliance" if the plan, as amended, would made progress towards consistency with new or changed minimum compliance criteria even if still not completely consistent with those compliance criteria. The court invalidated the plan amendment "because it [did] not comply with the mandatory requirement of section 163.3177(6)(a), Florida Statutes (1995) that any comprehensive plan or amendment include 'specific standards for the density or intensity of use.'" Id. The court also held that DCA rules, " to the extent that they permit non-compliance with the statutory requirement are themselves invalid . . . ." Id. There is no conflict between
that decision and the finding that the Plan Amendments are "in compliance," not that they "make progress towards being 'in compliance.'"
Standing
A proceeding under Section 163.3184(9), Florida Statutes. may be initiated by an "affected person." An "affected person" is defined in 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; owners of real property abutting real property that is the subject of a proposed change to a future land use map; and adjoining local governments that can demonstrate that the plan or plan amendment will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction. Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment.
As found, it is clear in this case that Petitioners: submitted the required oral or written comments, recommendations, or objections; are not adjoining local governments; and do not reside in or own property either
within or abutting the Town, all of which is the subject of the FLUM changes in the Plan Amendments. The remaining issue under Section 163.3184(1)(a) is whether they own or operate a business within the boundaries of the Town.
In St. Joe Paper Co. v. Department of Community Affairs, 657 So. 2d 27 (Fla. 1st DCA 1995), review denied, 667 So. 2d 774 (Fla. 1996), there was no evidence that 1000 Friends of Florida 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 1000 Friends' level of participation in that case as an "incidental and transient presence" that "does not suffice under section 163.3184(1)(a)." St. Joe, 657 So. 2d 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.
The evidence in this case was that Petitioners had
a "more substantial local nexus" than it appeared to the St. Joe court that 1000 Friends had in Walton County under the evidence of that case. Their local presence or nexus probably was less than that of RGMC in Dept. of Community Affairs v.
Lee County, DOAH Case No. 95-0098GM, 1996 Fla. ENV LEXIS 101,
at **120-21 (Admin. Comm. 1996). For all but FOM, and especially for the Hamiltons' Southern Realty business, it more than (and different from) the local presence or nexus in Potiris v. Dept. of Community Affairs and Village of Wellington, DOAH Case No. 05-0943GM, 2005 Fla. ENV LEXIS 95 (DCA 2005). For all of them, especially for FWF and FOM, it was somewhat comparable to the local presence or nexus of 1000 Friends and Audubon in 1000 Friends of Florida, Inc. v. Dept. of Community Affairs, DOAH Case No. 01-0781GM, 2001 Fla. ENV LEXIS 297 (DCA 2001). It was enough for FWF and FOM to be considered "affected person" under Florida Wildlife Federation Inc., and Friends Of Matanzas, Inc. v. Dept. of Community Affairs and St. Johns County, DOAH Case No. 03-2164GM, 2004 Fla. ENV LEXIS 239 (DCA 2004). It is concluded, as found, that the Hamiltons and FWF own or operate a business within the Town but that FOM does not.
Petitioners argue that a "person . . . whose
substantial interests will be affected by proposed agency action" so as to have standing as a party under Section 120.52(12)(b), Florida Statutes, but who is not an "affected person" under the definition in Section 163.3184(1)(a), Florida Statutes, also has standing under Section 163.3184(9), Florida Statutes. The decisions in St. Joe, supra at 28
("[S]ection 163.3184(10)(a) [here (9)] specifies that a person must be an 'affected person' in order to participate in the section 120.57 proceeding" and "Commission's unilateral expansion of section 163.3184(1)(a) does not accord with the statutory catalog of affected persons, which appears to be a comprehensive listing and which should not be altered without clear authorization and direction from the legislature"), and in Coastal Development of North Fla., Inc. v. City of Jacksonville, 788 So. 2d 204, 209 n. 25 (Fla. 2001) ("Section 163.3187(3) [here Section 163.3184(9)] confers standing in these administrative hearings to any 'affected person' as broadly defined in section 163.3184(1)(a), without the need to allege an injury."), suggest otherwise, and one administrative decision has decided the issue and concluded otherwise. See Shady Historic And Scenic Trails Association, Inc. vs. City Of Ocala and Red Oak Farm, Inc., DOAH Case No. 98-4144GM, 2003 Fla. Div. Adm. Hear. LEXIS 1131, at *30, Endnote 1 (Fla. Div. Adm. Hear. 2003)("this test is inappropriate here because the law does not require that a person (or association) be 'substantially affected' in order to challenge a plan amendment.") But it is not necessary to decide the issue in this case since the Hamiltons and FWF have standing under Section 163.3184(1)(a), Florida Statutes.
Similarly, no judicial decision directly decides
whether "associational standing" is possible under Section 163.3184(1)(a), using the principles of Florida Home Builders Ass'n v. Dept. of Labor and Employment Security, 412 So. 2d
351 (Fla. 1982), and Farmworker Rights Organization, Inc. v.
Dept. of Health, 417 So. 2d 753 (Fla. 1st DCA 1982). The administrative decision in Shady Historic And Scenic Trails, supra, decided that it is not, but it also is not necessary to decide this issue since the Hamiltons and FWF have standing under Section 163.3184(1)(a), Florida Statutes.
Petitioners also sought findings that they also are "adversely affected" for purposes of appellate review under Section 120.68(1), Florida Statutes. See Melzer v. Dept. of Community Affairs, 881 So. 2d 623 (Fla. 4th DCA 2004); O'Connell v. Dept. of Community Affairs, 874 So. 2d 673 (Fla. 4th DCA 2004); Fla. Chapter of the Sierra Club v. Suwannee American Cement Co., 802 So. 2d 520 (Fla. 1st DCA 2001). It is considered unnecessary and premature to determine whether any party would be entitled to judicial review of the final order entered in this case, or to make findings as to whether the parties would be "adversely affected." It is believed that such determinations, if they become necessary, can be made upon the evidence in the record.
Disposition by ALJ, DCA, and Administration Commission
Under Section 163.3184(9)(b), Florida Statutes, if the ALJ recommends that a plan or plan amendment be found "in compliance," the recommended order (RO) is submitted to the DCA, which is required to allow for the filing of exceptions and either: (1) enter a final order finding the plan or plan amendment to be "in compliance"; or (2) submit the RO to the Administration Commission for final agency action if DCA determines that the plan or plan amendment is not "in compliance."
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that that DCA enter a final order determining that the Plan Amendments are "in compliance."
DONE AND ENTERED this 28th day of April, 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 28th day of April, 2006.
ENDNOTES
1/ In the body of this Recommended Order, these will be referred to as the Plan Amendments, without reference to either their year of adoption (2005) or their long-term planning horizon (2015), which is how they are sometimes referenced in the record--potentially a cause for confusion in the record since the existing Comprehensive Plan planned for the year 2005 and is sometimes referred to as the 2005 Plan, in addition to its year of initial adoption (1990), the year remedial amendments were stipulated (1991), and the year the remedial amendments were adopted (1992). In the body of this Recommended Order, the existing Plan usually is referred to as the 1992/2005 Plan.
2/ Unless otherwise indicated, all statutory references are to the 2005 codification of the Florida Statutes.
3/ Petitioners' PRO questioned Centex's standing, but that issue was not raised previously, and it is not necessary to consider Centex's standing. See Jim Durham, et al. v. Polk County¸ DOAH Case No. 03-0593GM, 03-0933GM, 2004 Fla. ENV
LEXIS 230 (Admin. Comm'n June 25, 2004).
4/ Petitioners also served and filed an unnecessary Motion for Leave to File First Amended Petition for Hearing. Cf. Fla. Admin. Code R. 28-106.202.
5/ Several of these exhibits were composites: 11(A-C, D.1-4, and E-F); 30(A-B); 46(A-D); 35(A-B); and 47(A-B).
Petitioners' Exhibit 50 is the same as Intervenor Exhibit 8.
6/ Unless otherwise noted, rule citations are to the current version of the Florida Administrative Code.
7/ See Conclusion 106, infra. While not stricken from Petitioners' PRO, the references to alleged internal inconsistencies in PRO ¶111, timeshares in PRO fn. 26 and
¶110, and to the FEMA Study in PRO fn. 29 were not properly raised by Petitioners as reasons why the Plan Amendments are not "in compliance," and they are not considered or treated as such. Arguments concerning the need to review the unamended and unchallenged provisions in the "plan as a whole" to
determine whether they cure minimum criteria failures of the Plan Amendments are not stricken from Petitioners' PRO. However, a ruling on the validity of those arguments is unnecessary in light of the Findings and Conclusions in this Recommended Order.
8/ Petitioners' PRO also refers to intensity, but the primary issue relates to residential density.
9/ According to the "Introduction" to the 1992/2005 Plan, what followed, which included the referenced data and analysis, "constitutes the adoption document "
10/ These calculations do not include any of the 125 hotel rooms, which are not ordinarily counted as residential units, or any live-aboard boats at the marina, both of which were allowed under the 1992/2005 Plan.
11/ DCA has, however, taken steps to require local governments to prepare for more intense hurricanes. Rule 9J-5.003(57) defines "Hurricane Vulnerability Zone" as "[t]he areas delineated by the regional or local hurricane evacuation plan as requiring evacuation" and requires it to "include areas requiring evacuation in the event of a 100-year storm or Category 3 storm event." In addition, the benchmark storm for the Northeast Regional Planning Council's 2005 Update to its 1998 Regional Hurricane Evacuation Study is a Category 3 storm, the most probable major hurricane.
12/ As reflected in the Preliminary Statement, Centex moved to strike the issue of alleged failure to contain a percentage distribution of mixed uses, but the motion was denied.
13/ This Conclusion is part of the basis for the ruling on Centex's Motion to Strike Portions of Petitioners' PRO.
COPIES FURNISHED:
Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Suite 100
Tallahassee, Florida 32399-2100
David Jordan, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325
Tallahassee, Florida 32399-2160
Thomas W. Reese, Esquire 2951 61st Avenue South
St. Petersburg, Florida 33712-4539
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
David C. Ashburn, Esquire Sherry A. Spiers, Esquire Greenberg Traurig, P.A. Post Office Drawer 1838
Tallahassee, Florida 32302-1838
Dennis K. Bayer, Esquire
306 South Oceanshore Boulevard Flagler Beach, Florida 32136
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 |
|---|---|---|
| Jun. 09, 2006 | Agency Final Order | |
| Apr. 28, 2006 | Recommended Order | It was not proven beyond fair debate that the revision of plan of Town now all in CHHA is not "in compliance." |
