STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. ANDREW BAY RESOURCE ) MANAGEMENT ASSOCIATION, INC., ) AND DIANE C. BROWN, )

)

Petitioners, )

)

vs. ) Case No. 10-0859GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS AND BAY COUNTY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, D. R. Alexander, on August 30, 2010, in Panama City, Florida.

APPEARANCES

For Petitioner: Diane C. Brown, pro se (Brown) 241 Twin Lakes Drive

Laguna Beach, Florida 32413-1413

For Petitioner: Alfred E. Beauchemin (RMA) Qualified Representative

705 Beachcomber Drive

Lynn Haven, Florida 32444-3419

For Respondent: Matthew G. Davis, Esquire (Department) Department of Community Affairs

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

For Respondent: Terrell K. Arline, Esquire (County) Bay County Attorney

840 West 11th Street

Panama City, Florida 32401-2336 STATEMENT OF THE ISSUE

The issue is whether an amendment to Conservation Element policy 6.11.3(3) adopted by Respondent, Bay County (County), by Ordinance No. 09-36 on October 20, 2009, is in compliance.

PRELIMINARY STATEMENT

On October 20, 2009, the County adopted its Evaluation and Appraisal Report (EAR) amendments, which included an amendment to Conservation Element policy 6.11.3(3). On December 15, 2009, Respondent, Department of Community Affairs (Department), found the amendments to be in compliance.

On February 4, 2010, Petitioner, St. Andrew Bay Resource Management Association, Inc. (RMA), filed with the Department its Petition for Administrative Hearing challenging policy 6.11.3(3). On February 5, 2010, Petitioner, Diane C. Brown, filed her Petition for Administrative Hearing with the Department contending numerous EAR-based amendments, including policy 6.11.3(3), were not in compliance. The two Petitions were referred by the Department to the Division of Administrative Hearings on February 17, 2010, with a request that a formal hearing be conducted. The Brown pleading was

assigned DOAH Case No. 10-0858GM, while the RMA pleading was assigned Case No. 10-0859GM. At the request of the Department, the two cases were consolidated by Order dated March 25, 2010. By agreement of the parties, however, the proceeding was then bifurcated, and policy 6.11.3(3) was heard separately from the other EAR-based amendments in Case No. 10-0859GM.

Separate pre-hearing statements were filed by Petitioners and Respondents on August 27, 2010. A final hearing was conducted on August 30, 2010. At the hearing, Petitioners jointly presented the testimony of Martin J. Jacobson, County Director of Planning and Zoning; K. Marlene Conaway, a land use planner and accepted as an expert; Dr. Raymond D. Semlitsch, Curators' Professor of Biological Sciences at the University of Missouri and accepted as an expert; and Dr. John M. Foster, Linda M. Fitzhugh, and Patrice Couch, members and/or employees of RMA. Also, they offered Petitioners' Exhibits 6, 11, 12, 14-

18, 22, 26, 29, and 35, which were received in evidence. The County presented the testimony of Martin J. Jacobson, who was accepted as an expert; and Daniel W. Garlick, a professional wetland scientist with Garlick Environmental Associates, Inc., and accepted as an expert. Also, it offered County Exhibits 1, 2, 7-10, 14, 15, and 17, which were received in evidence. The Department did not present any witnesses.

The Transcript of the hearing was filed on March 17, 2011. At the request of Petitioner Brown, the time for filing proposed findings of fact and conclusions of law was extended to May 13, 2011. They were timely filed by Petitioners and Respondents and have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Parties

   
   

   1. Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36.

   2. RMA is a non-profit association with approximately 100 members whose mission is "to ensure that future growth [in the County] is properly managed to maintain the quality and productivity of the local estuarine system." See Petitioners' Ex. 6. The parties have stipulated to the facts necessary to establish that RMA is an affected person.

   3. The County is a local government that administers its Comprehensive Plan (Plan). The County adopted the Ordinance that approved the text amendment being challenged here.

   4. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County.

      
      

2. History and Purpose of the Amendment

   
   

   1. The County adopted its current Plan in December 1999.

      
      

      Section 163.3191(1), Florida Statutes, requires that every seven years each local government adopt an EAR to "respond to changes in state, regional, and local policies on planning and growth management and changing conditions and trends, to ensure effective intergovernmental coordination, and to identify

      major issues regarding the community's achievement of its goals." In the spring of 2006, the County began the process of preparing an EAR. On October 17, 2006, it submitted an EAR and Supplement to the Department. On December 21, 2007, the Department found the EAR and Supplement to be sufficient pursuant to section 163.3191(2). See County Ex. 7.

   2. After approval of the EAR, section 163.3191(10) requires that the local government "amend its comprehensive plan based on the recommendations in the report." Item 15 in the Recommended Changes portion of the EAR recommended that the Conservation Element be amended in the following respect: "The wetland and surface water buffer requirements should be restructured to recognize site-specific conditions such that pristine systems are afforded greater protection than impacted systems." Petitioners' Ex. 35. A similar recommendation is found in the Issues section of the EAR. Id. To implement these

      
      

      recommendations, the County added a second sentence to subsection (3) of Conservation Element policy 6.11.3. As amended, the subsection now reads as follows:

      (3) Wetland setbacks will be required as specified in Policy 6.7.4 for development on lots or parcels created after the effective date of this policy. Alternate project design and construction may be permitted in lieu of a required buffer when it can be demonstrated that such alternate design provides equal or greater protections to the wetland or its habitat value.

      
      

   3. On April 16, 2009, the Local Planning Agency conducted a public hearing and recommended approval of the EAR-based amendments. On May 19, 2009, the Board of County Commissioners (Board) voted to transmit the EAR-based amendments to the Department for its review and comments. On July 31, 2009, the Department issued its Objections, Recommendations, and Comments Report.

   4. On October 20, 2009, the Board enacted Ordinance No.

      
      

      09-36, which adopted the EAR-based amendments, including the amendment to policy 6.11.3(3). See County Ex. 2. On

      December 15, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See County Ex. 8. Notice of this action was published in the Panama City News-Herald on December 16, 2009. See County Ex. 9.

      
      

   5. Although section 163.3177(6)(d) requires that the conservation element in a comprehensive plan protect wetlands, nothing in chapter 163 or Department rules requires a local government to adopt buffers. Even so, a 30-foot buffer has been in place since the County adopted its first Plan in 1990.

   6. Before it was amended, policy 6.11.3(3) provided that "[w]etland setbacks will be required as specified in Policy

      6.7.4 for development on lots or parcels created after the effective date of this policy." Thus, it incorporated by reference the buffer zone requirements established in subsection

      (6) of policy 6.7.4. That provision reads as follows:

      
      

      (6) No building or structure can be located closer than thirty (30) feet from any DEP wetland jurisdiction line, mean high water line, or ordinary high water line except for piers, docks or similar structures and an attendant ten (10) foot wide cleared path through the wetland for purposes of providing access to such structure, or wet- land crossings required to connect dry, upland parcels. All native vegetation, if any exists, will be preserved within the 30- foot setback area. This requirement, including possible alternatives, may be further addressed in the Land Use Code.

      
      

      In short, this provision (a) requires a 30-foot buffer setback area between structures and DEP jurisdictional wetlands and mean or high water lines; (b) requires the preservation of native vegetation in the setback area; and (c) authorizes a 10-foot wide area to be cleared across the setback area to access the

      
      

      water or a dock. However, pursuant to provisions addressed in the Land Use Code (now renamed the Land Development Regulations (LDRs)), alternative project design and construction may be used in lieu of the required buffers. Except for changing the words "Land Use Code" to "Land Development Regulations," policy 6.7.4(6) was not amended in the EAR process. Therefore, all of its requirements remain in place.

   7. To address other "alternatives" to the buffer requirements, in September 2004 the County amended section 1909.3.h of the LDRs to allow alternative project design and construction "in lieu of the required buffer when it can be demonstrated that such alternative method provides protection to the wetland or its habitat value that is equal or greater than the vegetated buffer." Petitioners' Ex. 14, p. 19-11. This regulation authorizes the County Planning Commission, on a case- by-case basis through the site plan and variance process, and subject to final approval by the Board, to reduce the 30-foot buffer provided that the reduced buffer is mitigated based upon site-specific circumstances. The processing of these requests has provided the County with experience in approving buffer modifications through the use of alternative methods that provide "equal or greater" environmental benefits.

      
      

   8. A small number of variances have been authorized by the County under this process since the adoption of the regulation. See County Ex. 10 and 11; Petitioners' Ex. 15-18. In those cases, the County has granted a variance where, for example, the applicant has chosen to cluster wetland access points, elevate walkways in the buffer, enhance the buffer with vegetation or turf, reduce existing stormwater impacts, use swales, or employ other required mitigation to offset the reduction in the buffer. On the other hand, "numerous" other property owners were advised that, absent "special circumstances," a variance would not be granted because the applicant could not demonstrate that there would be an enhanced environmental benefit by reducing the buffer. Under current Plan provisions, a variance is the only way to modify the buffer requirement.

   9. The amendment does not eliminate the minimum 30-foot buffer required by policy 6.7.4(6). See Finding of Fact 10, supra. It does, however, provide the County with greater flexibility in approving requests to modify the required buffers and to consider factors that the current Plan does not address. Even though the function and value of wetlands may vary widely, the current Plan makes no distinction between pristine or impacted wetlands, and it does not allow the County to require a

      
      

      larger buffer for a pristine wetland. Under the new policy, the County may establish buffers based on site-specific conditions that consider factors such as location, wetland quality, surrounding land uses, site habitat, and the presence or absence of listed species. This will enable the County, through alternative design and construction techniques, to preserve higher quality wetlands or vegetation with larger buffers while at the same time reducing the buffer size for impacted wetlands in return for mitigation by the owner. The County will also have the flexibility to establish buffers in non-urban settings based on factors other than just erosion potential.

   10. The specific process for approving changes in buffer setbacks under the new policy will be established in the LDRs. However, all LDRs must meet the standard in the policy that the alternative design provides "equal or greater protection to the wetland or its habitat value." Under the process envisioned by the County, when a request is made for a buffer reduction under the new policy, the County will require that an analysis be performed by a qualified professional to justify the need for a buffer reduction. If no alternative to a buffer reduction exists, the owner will be required to have a biotic study prepared indicating the extent to which the encroachment would occur, along with justification for the encroachment. Assuming

       
       

       that justification can be shown, the County will then require some form of mitigation by the owner.

   11. The effectiveness of the new policy will be monitored, evaluated, and appraised through the use of geographical information system overlay maps. Finally, members of the public, including Petitioners, will be given access to the process through existing notice requirements for development orders.

3. Petitioners' Objections

   
   

   1. Petitioners contend that policy 6.11.3(3) is internally inconsistent with Conservation Element objectives 6.7 and 6.11; that it is inconsistent with sections 163.3177(6)(d), (8), and (9)(b), 163.3191(10), and 187.201(9); and that it is inconsistent with Florida Administrative Code rules 9J-5.005(2) and (5) and 9J-5.013(1). The essence of the arguments is that the new policy decreases protection for wetlands, that it conflicts with the specific recommendations in the EAR, and that buffers should be based on studies pertaining to wetland setbacks rather than alternative design and construction. To prevail on these contentions, Petitioners must show that even if there is evidence supporting the propriety of the amendment, no reasonable person would agree that the amendment is in compliance. See Conclusion of Law 28, infra.

      
      

      1. Data and analysis

         
         

   2. Petitioners contend that the amendment is not supported by adequate and appropriate data and analysis, that the County did not react appropriately to the data and analyses in the EAR, and that the amendment is therefore inconsistent with rules 9J-5.005(2) and 9J-5.013(1) and section 163.3177(8).

   3. The data and analysis in the EAR and Supplement, including the Deer Point Reservoir Hydrologic Study, are incorporated by reference into the Plan. See County Ex. 1, Ch. 1, policy 1.1.4.4. As recommended by the EAR, the County reviewed current published scientific literature relating to wetland and surface water buffers. It also conducted a survey of buffer regulations and setbacks in various jurisdictions in the County and throughout the State.

   4. As summarized in the EAR, the data and analysis describe the limitations of wetland buffers, including the existing 30-foot buffer; however, they do not suggest that a larger buffer is necessary. Rather, they support the necessity for flexibility in the application of the existing buffer in order to provide equal or greater protection to pristine wetlands, which is the purpose of the new amendment. Petitioners contend that based on current published literature, the County should have reacted to the data and analysis by

      
      

      adopting a series of specific buffer distances up to 300 meters, depending on the type of habitat and wildlife around the wetlands and streams. While the establishment of larger wetland buffers in the Plan is possible, they are not required by state law or Department rules, and section 163.3184(6)(c) provides that a local government does not have to duplicate or exceed a state agency's permitting program. It is at least fairly debatable that the County reacted to the data and analysis in an appropriate manner by adopting a policy that requires that any request for a deviation from the minimum 30-foot buffer be accompanied by a demonstration that the alternative design will provide at least equal or greater protection to wetlands and their habitat values.

      1. Internal Inconsistency with Conservation Element

         
         

   5. Petitioners next contend that policy 6.11.3(3) violates section 163.3177(9)(b) and rule 9J-5.005(5) because it is internally inconsistent with objectives 6.7 and 6.11. The two objectives were not amended during the EAR process.

   6. Petitioners contend that the new policy is internally inconsistent with objective 6.7, which requires that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." Petitioners' evidence does not

      
      

      establish beyond fair debate that the new policy is internally inconsistent with this objective.

   7. Petitioners also contend that the policy is internally inconsistent with objective 6.11, which requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands."

   8. Wetlands vary widely in function and value, and the current one-size-fits-all standard does not adequately address the different values and functions. The new policy provides the County with the flexibility to consider numerous site-specific factors and, when warranted, to establish buffers that vary from the 30-foot standard. The evidence shows that the new policy can also assist with the restoration of degraded natural systems to a functional condition. It is at least fairly debatable that the new policy protects and conserves wetlands and their natural functions. Similarly, the policy does not conflict with rule

      9J-5.013 and section 187.201(9), which require or encourage that wetlands and other natural functions of wetlands be preserved, as alleged by Petitioners.

      1. Consistency with section 163.3191(10)

      
      

   9. Petitioners contend that the new policy is inconsistent with section 163.3191(10) because the County failed to "amend its comprehensive plan based on the recommendations in

      
      

      the [EAR] report." As a part of this argument, they also assert that, contrary to recommendations in the EAR, the new policy does not give adequate direction for the LDRs; that it contains none of the recommended site-specific criteria needed to evaluate the alternative design; that it fails to include a defined setback size; and that it does not allow the County to increase the size of a buffer. These arguments are based upon item 15 of the Recommended Changes portion of the EAR, which recommends that the County "restructure" the wetland and surface water buffer requirements "to recognize site-specific conditions such that pristine systems are afforded greater protection than impacted systems." Petitioners' Ex. 35.

   10. The new policy does not eliminate the 30-foot buffer.

       
       

       See policy 6.7.4(6)("no building or structure can be located closer than thirty (30) feet from any DEP wetland jurisdiction line, mean high water line, or ordinary high water line").

       While the policy allows the required buffer to be modified, an applicant must first demonstrate that the alternative design provides equal or greater protection to the wetland or its habitat value. The policy also provides direction for implementing LDRs by requiring that any adopted LDR adhere to the above standard. Notably, through alternative design, the County may require larger buffers for pristine wetlands, while

       
       

       reducing the buffers for those of lower quality in return for mitigation. This is consistent with the EAR recommendation that the County afford pristine systems greater protection than impacted systems.

   11. Petitioners further point out that the new policy is flawed because it does not include every site-specific condition mentioned in the EAR. However, there is no requirement for this level of detail in the Plan, so long as the policy achieves the overall recommendation in the EAR, and it provides adequate standards for implementing LDRs. It is at least fairly debatable that the amendment complies with the requirements of the statute.

       CONCLUSIONS OF LAW

       
       

   12. In order to have standing to challenge a plan amendment, a challenger must be an affected person as defined in section 163.3184(1)(a). The parties have stipulated to facts that support a conclusion that both Petitioners are affected persons and have standing to participate in this proceeding.

   13. Once the Department renders a notice of intent to find a plan amendment in compliance, as it did here, that plan provision "shall be determined to be in compliance if the local government's determination of compliance is fairly debatable."

       § 163.3184(9)(a), Fla. Stat. Therefore, Petitioner bears the

       
       

       burden of proving beyond fair debate that the challenged plan amendment is not in compliance. This means that "if reasonable persons could differ as to its propriety," a plan amendment must be upheld. Martin Cnty. v. Yusem, 690 So. 2d 1288, 1295 (Fla.

       1997). Where there is "evidence in support of both sides of a comprehensive plan amendment, it is difficult to determine that the County's decision was anything but 'fairly debatable.'" Martin Cnty. v. Section 28 Partnership, Ltd., 772 So. 2d 616, 621 (Fla. 4th DCA 2000).

   14. For the reasons given in the Findings of Fact, Petitioners have failed to establish beyond fair debate that the amendment is not in compliance. Therefore, that portion of Ordinance No. 09-36 which amends Conservation Element policy 6.11.3(3) is in compliance.

   RECOMMENDATION

   
   

   Based on the foregoing Findings of Fact and Conclusions of Law, it is

   RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendment to policy 6.11.3(3) adopted by the County by Ordinance No. 09-36 is in compliance.

   
   

   DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida.

   S

4. R. ALEXANDER Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011.

COPIES FURNISHED:

William A. Buzzett, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Deborah K. Kearney, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Diane C. Brown

241 Twin Lakes Drive

Laguna Beach, Florida 32413-1413

Alfred E. Beauchemin 705 Beachcomber Drive

Lynn Haven, Florida 32444-3419

Lynette Noor, Esquire Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Terrell K. Arline, Esquire Bay County Attorney

840 West 11th Street

Panama City, Florida 32401-2336

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 10-000859GM

Orders for Case No: 10-000859GM